Opinion
CR. 2001-30047
June 8, 2001
Jay P. Miller, US Attorney's Office, Pierre, S.D., Attorney for Plaintiff.
Edward G. Albright, Federal Public Defender's Office, Pierre, S.D., Attorney for Defendant.
REPORT AND RECOMMENDATION FOR DISPOSITION OF DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE REPORT AND RECOMMENDATION
I.
[¶ 1] Defendant, Andrew Red Bird (Red Bird), filed a Motion to Suppress Statements and Evidence and supporting Memorandum on May 15, 2001. Docket Nos. 18-19. A hearing was later held on the Motion on May 29, 2001 at which three witnesses testified and three exhibits were received into evidence. Docket Nos. 26, 28. Because Red Bird's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of Red Bird's Motion.
II.
[¶ 2] Red Bird, whose date of birth is June 28, 1958, is charged with four counts of aggravated sexual abuse in violation of 18 U.S.C. § 1153 and 2246(2)(A), (B) and (C). The indictment alleges that Red Bird sexually abused Valencia Bone Shirt, aka Valencia Four Horns, on or about September 10, 2000 on the Rosebud Indian Reservation in South Dakota. Red Bird has pled not guilty to all four counts of the indictment and is currently detained pending trial.
[¶ 3] In his Suppression Motion, Red Bird seeks to suppress any and all statements he made to FBI Agent D. Joseph Weir and Rosebud Sioux Tribal Criminal Investigator Grace Her Many Horses on Sixth Amendment and voluntariness grounds. He also moves to suppress six buccal swabs and DNA evidence derived therefrom as "fruits of the poisonous tree". Plaintiff, United States of America (government) asserts that Red Bird's Sixth Amendment rights were not violated and that statements to Weir and Her Many Horses were voluntary and not coerced. The government also argues that the swabbings and DNA evidence were not the "fruit" of an illegal interview, were not testimonial in nature and would have been inevitably discovered.
[¶ 4] At the conclusion of the May 29th hearing, the Court took the matter under advisement. After careful study of the facts and circumstances present and relevant precedent, the Court concludes that Red Bird's Motion should be granted in part and denied in part, as explained in more detail below.
III.
[¶ 5] On September 11, 2000, Red Bird was charged by criminal complaint in Rosebud Sioux Tribal Court with the offense of rape. The complaint alleges that on September 10, 2000 near Spring Creek, South Dakota on the Rosebud Reservation, Red Bird forcibly raped Four Horns. That same day, Red Bird was arraigned in tribal court and pled not guilty to the rape charge. The Rosebud Tribal Public Defender appeared and represented Red Bird at the arraignment and, as of May 29, 2001, remains his counsel on the charge.
[¶ 6] On November 28, 2000, Weir and Her Many Horses sought to interview Red Bird concerning his alleged rape of Four Horns. The officers contacted Red Bird while he was parked in his vehicle near a school in Spring Creek. Weir asked if Red Bird would agree to be interviewed about the alleged sexual assault of Four Horns. Red Bird said that he would only agree to be interviewed at his house, that he would "make one statement and one statement only" and that Weir "would not get any more out of him". Red Bird also told Weir that "his lawyer had told him not to make a statement but he had nothing to hide".
[¶ 7] Thereafter, Red Bird traveled alone to his house in St. Francis, followed by Weir and Her Many Horses in the former's car. At the house, Red Bird was informed of his Miranda rights from an advice of rights form and after reading the waiver portion of it out loud himself, signed the form and agreed to be interviewed. Red Bird was then questioned about the same rape allegation that gave rise to the tribal charge and made incriminatory statements concerning the same. During the course of the interview, Red Bird agreed to provide buccal swabs for the purpose of DNA testing and executed a written authorization form evidencing his consent to this procedure. After swabbings were taken from his mouth at the Rosebud Indian Health Services Hospital, Red Bird left in his vehicle, accompanied only by his wife.
[¶ 8] At the time of the November 28th interview, Her Many Horses knew that Red Bird had been arrested tribally for a rape offense, that he had been arraigned by a tribal judge and that the Tribal Public Defender was representing him. Weir, however, does not believe that he was apprised of this information before the interview. Neither Her Many Horses nor Weir, however, ever sought or obtained permission from the Public Defender to interview Red Bird or to take buccal swabs from him prior to November 28th.
[¶ 9] On April 18, 2001, a federal indictment was filed alleging that Red Bird had committed several acts of forcible rape against Four Horns. The following day, April 19th, Red Bird was arrested by Weir on the indictment in Spring Creek and taken into federal custody.
IV.
[¶ 10] Red Bird claims that his inculpatory statements to Weir and Her Many Horses were obtained in violation of his Sixth Amendment right to counsel and that because of this, evidence derived from these statements are a poisonous "fruit" that must be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963) and its progeny.
V.
[¶ 11] The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The essence of this right is the opportunity for a defendant to consult with an attorney and to have him/her investigate the case and prepare a defense for trial. Powell v. Alabama, 287 U.S. 45, 58, 71 (1932). In Massiah v. United States, 377 U.S. 201 (1964), the Supreme Court held that a defendant's Sixth Amendment rights were violated when federal agents deliberately solicited incriminatory statements from him after he had been indicted and in the absence of his counsel. 377 US at 206. The Court, relying on Massiah, later held that, under the Sixth Amendment, "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Michigan v. Jackson 475 U.S. 625, 636 (1986); see also, Maine v. Moulton, 474 U.S. 159, 176 (1985) ("The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State. . . and is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a State agent."). Massiah and Jackson thus make clear that the Sixth Amendment right to counsel attaches against the government at the time of a defendant's federal or state court arraignment. The issue here is whether this right attached when Red Bird was arraigned in tribal court on the rape charge.
VI.
[¶ 12] At the outset, there can be little doubt that Weir and Her Many Horses were investigating and sought to interrogate Red Bird on the same rape offense as he was already charged with and pled not guilty to in tribal court. Texas v. Cobb, 121 SCt 1335, 1343 (2001). Under the test enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932), Red Bird's tribal and federal charges do not require proof of any substantive fact that the other does not. Compare, Cobb, 121 SCt at 1343-44; see also, Brown v. Ohio, 432 U.S. 161, 164-68 (1977) (joyriding and auto theft constitute the "same offense" because "it is clearly not the case that each requires proof of a fact which the other does not"). Inasmuch as the underlying facts, which form the basis for both sets of charges, are identical, Red Bird's Sixth Amendment right to counsel would have attached with respect to the federal charges at the same time that it did on the tribal charge — if his tribal arraignment created such a right. The paramount question therefore is whether the right was triggered at the time of Red Bird's tribal court arraignment, as he argues, or when he was indicted and federal criminal proceedings were formally initiated against him, as the government maintains.
VII.
[¶ 13] The plain language of the Sixth Amendment prohibits the government from infringing upon a defendant's right to counsel "in all criminal prosecutions". (emphasis added). The framer's use of the word "all" is intended to include federal, state and tribal prosecutions. The right to counsel guaranteed by this Amendment attaches "at . . . the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment." United States v. Gouveia, 467 U.S. 180, 188 (1984) ( quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)) (emphasis added); see also, Brewer v. Williams, 430 U.S. 387, 401 (1977); Massiah, 377 U.S. at 204-06.
[¶ 14] In the instant case, Weir and Her Many Horses questioned Red Bird after he had appeared with and was represented by counsel at his tribal court arraignment and entered a not guilty plea to the rape charge. In this Court's view, questioning by the officers under these circumstances violated Red Bird's Sixth Amendment right to counsel.
VIII.
[¶ 15] Contrary to the position espoused in United States v. Doherty, 126 F.3d 769, 782-83 (6th Cir. 1997), cert. denied, 524 U.S. 917 (1998), Rosebud Tribal Court proceedings are "adversarial" as that term was intended to be used in Gouveia. Indeed, the Rosebud Tribe plainly "solidified" its decision to become Red Bird's legal opponent when it charged him, by written complaint, with the offense of rape, had him appear in tribal court with counsel to answer the charge and, after being advised of his rights, required that he enter a plea to the same. See and compare Moran v. Burbine, 475 U.S. 412, 431-32 (1986).
The Supreme Court in Cobb overruled Doherty to the extent that it defined "offense", in the Sixth Amendment context, to encompass "closely related" or "inextricably intertwined" acts. 121 SCt at 1340-41.
[¶ 16] The Rosebud Tribe, unlike the Hannahville Tribe in Doherty, treats its version of an arraignment as an adversary proceeding. If such a proceeding was non-adversarial, why would the Rosebud Tribe provide its indigent members with representation through a tribally funded public defender who is a licensed practicing attorney? Although the Rosebud Tribal Constitution does not explicitly require that a tribal court appoint counsel to represent indigent tribal members if they lack the means to retain one, see Rosebud Const. amend. XI, art. X, § 2 (1966), the Tribe, by virtue of its public defender program, has decided to provide such members with legal representation in criminal cases, at tribal expense, if they are unable to afford the same. The decision to do so is a strong indication that the Rosebud Tribe is not one that has eschewed the prosecutorial and adversarial model of criminal justice. To say that Red Bird's tribal arraignment was a non-adversarial proceeding trivializes tribal criminal jurisprudence, ignores reality and creates bad precedent. More importantly, to hold that the Sixth Amendment does not constrain the behavior of officers in this instance invites flagrant federal abuse of Indian criminal defendants and, in particular, those from the Rosebud Reservation.
A copy of this Constitutional Amendment is attached hereto.
IX.
[¶ 17] The issue of whether the Sixth Amendment right to counsel attached at a defendant's tribal court arraignment was recently addressed in United States v. Swift Hawk, 2000 DSD 52, 125 F. Supp.2d 384. In that case, the defendant was charged with tribal charges which were essentially the same as the later filed federal charge, appeared with counsel from the Public Defender's Office, and was arraigned. 125 F. Supp.2d at 386. After the defendant was released on bond, he was interviewed by an FBI agent and tribal investigator at his home. Id. Both officers were aware that the defendant had been charged and arraigned in tribal court at the time of the interview. Id. The defendant was not advised of his right to have his attorney present, nor was he advised of his Miranda rights prior to being questioned. Id. at 387. No permission was sought or obtained from the defendant's tribal counsel prior to the interview taking place. Id. The defendant had not been indicted in federal court at the time the interview was conducted. Id. Officers did, however, interview the defendant on the underlying facts which gave rise to the tribal charges and the statements solicited from him were used by federal authorities to indict him.
[¶ 18] The defendant in Swift Hawk asserted that the Sixth Amendment required the suppression of his statements to officers because the same had been obtained after his right to counsel had been activated and without the presence of his tribal counsel. The Swift Hawk court found that the tribal and federal charges were virtually identical and that the government and the Rosebud Tribe were cooperating in the investigation and charging of the defendant (i.e., the two sovereigns were working "in tandem" in connection with the federal and tribal charges). Id. at 387-88. The court observed initially that "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." Id. at 386-87. The court then noted that the Rosebud Tribal Constitution grants tribal members the right to assistance of counsel and that the Tribe provides for representation for indigent members at tribal expense through the Public Defender's Office. Id. at 387. The court went on to hold that the Massiah exclusionary rule was triggered by a tribal constitutional right to counsel and by the fact that the defendant had actually been arraigned in an adversarial tribal court proceeding in which he was represented by counsel. Id. at 388-89. In doing so, the court emphasized that "federal agents are indeed constrained by the Sixth Amendment, that the Sixth Amendment attaches at the initiation of adversary proceedings, and that an uncounseled confession (dealing with basically the same offense conduct) after the adversarial tribal court arraignment and appointment of counsel must be suppressed." Id. at 389.
[¶ 19] The facts in the case at hand are virtually "on all fours" with those found in Swift Hawk. The only difference between the two cases is that Red Bird was advised of his Miranda warnings and waived them prior to being interviewed. This distinction, as Jackson makes clear, is of no legal significance. In Jackson, the defendants' statements to law enforcement authorities were suppressed under the Sixth Amendment even though they were first advised of their Miranda rights and agreed to proceed without counsel being present. 475 U.S. at 628. Despite their Miranda advisements and waivers, the Supreme Court concluded that both the defendants' confessions should be suppressed under the Sixth Amendment. Id. at 629-36.
Three of the Justices in the Cobb majority questioned the underlying theory of Jackson and the wisdom of its holding. 121 SCt at 1344-45 (Kennedy, Scalia and Thomas, J.J. concurring). The Cobb court, however, did not abrogate the rule announced in Jackson but did appear to undermine its holding by significantly diminishing the Sixth Amendment protections the case provides. Even so, Cobb does not change the Jackson rule insofar as this case is concerned because of the identity of the offenses and factual proofs involved.
[¶ 20] The analysis of the court in Swift Hawk applies with equal force here, at least on its face, and compels suppression of Red Bird's statements to Weir and Her Many Horses and all evidence, including buccal swabs and DNA test results, derived therefrom. Although it can be argued that the statements in Swift Hawk regarding the Sixth Amendment issue are no more than dicta, this Court finds that the Swift Hawk court's discussion of the issue to be persuasive and dispositive of Red Bird's right to counsel contention. The Court accordingly declines to brush aside the Swift Hawk pronouncements as non-binding "dicta".
X.
[¶ 21] Whether or not the doctrine of selective incorporation makes provisions of the Bill of Rights applicable to Indian tribes has never been squarely addressed and is an issue that need not be decided here. There can be no question though that the Sixth Amendment restricts the actions of an FBI agent. Indeed, a line of authority growing out of Talton v. Mayes, 163 U.S. 376 (1896), while exempting Indian tribes from constitutional provisions addressed specifically to state or federal governments, does not relieve state and federal governments of their obligations to individual Indians under these provisions. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 n. 7 (1978); see also, Duro v. Reina, 495 U.S. 676, 692 (1990) ("Indians like other citizens are embraced within our nation's great solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty." (citation and internal quotations omitted)).
XI.
[¶ 22] Moreover, the Indian Civil Rights Act (ICRA), discussed at length in Doherty, see 126 F.3d at 778-81, has little, if any, relevancy to the instant case. The question of constitutional interpretation now before this Court is independent of any statutory construction. As the court in Doherty acknowledges, see id. at 783, when a defendant's right to counsel has attached under the Sixth Amendment, no statute can change, much less eviscerate this fact.
XII.
[¶ 23] The Doherty court's citation to and reliance on extradition hearing cases, see id. at 782, is misplaced. These cases hold that such hearings are not adversarial proceedings that trigger the Sixth Amendment. Red Bird, however, was arraigned at an adversarial tribal proceeding before being questioned by Weir and Her Many Horses — which clearly activated the protections guaranteed by the Sixth Amendment.
XIII.
[¶ 24] For all of these reasons, this Court finds that Red Bird was interviewed in violation of his Sixth Amendment right to counsel and any statements given by him in response to questioning from Weir and Her Many Horses must be suppressed. Nevertheless, the Court finds that Red Bird's statements were not the product of coercion or otherwise involuntary, compare Mincey v. Arizona, 437 U.S. 385 (1978), and therefore are admissible at trial for impeachment purposes under Oregon v. Hass, 420 U.S. 714, 720-24 (1975) and Harris v. New York, 401 U.S. 222, 223-26 (1971); see also, Michigan v. Harvey, 494 U.S. 344, 348-54 (1990) (overturning a state court ruling that because the defendant's statement after arraignment and appointment of counsel was taken "in violation of [his] Sixth Amendment right to counsel" it could not be used for impeachment purposes).
This finding is based primarily on credibility grounds — quite simply, the Court believed Weir's rendition of what took place on November 28th over Red Bird's version of the events that day.
It should be noted that because the November 28th interview was not tape recorded, the use of Red Bird's statements as impeachment is subject to the rule in United States v. Azure, CR. 99-30077, Order (DSD Oct. 19, 1999). Consequently, the government will not be allowed to question Red Bird about his inculpatory statements "in the absence of a cautionary instruction and explanation by the [District] Court to the jury." Id. at 2.
XIV.
[¶ 25] Because Red Bird's statements were illegally obtained, the buccal swabs and DNA findings are potentially excludable as "fruits of the poisonous tree". The fact that Red Bird consented to the swabbing during the course of the interview did not purge the taint of the original illegality and cannot save the evidence from exclusion. The inevitable discovery exception to the exclusionary rule does, however, provide the government with a gateway for admitting the challenged evidence.[¶ 26] Although a somewhat close question, this Court is satisfied that such evidence would have been inevitably discovered by lawful means without reference to the Sixth Amendment violation. Nix v. Williams, 467 U.S. 431, 444 (1984) (applying the exception where the poisonous tree was a confession obtained in violation of the defendant's right to counsel and rejecting the defendant's argument that the reasons for such an exception are less compelling when the violation is a Sixth Amendment rather than a Fourth Amendment one); see also, United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001). The government routinely makes application to the Court for search warrants to obtain bodily fluids of rape suspects. In light of the tribal charge and the information known to law enforcement authorities before the November 28th interview, the Court is confident that the government would have requested, and ultimately been issued, a search warrant authorizing the taking of blood or tissue specimens from Red Bird for the purpose of confirming or dispelling, through comparative DNA analysis, the rape allegations. See United States v. Dickson, 64 F.3d 409, 410-11 (8th Cir. 1995), cert. denied, 516 U.S. 1064 (1996). This being the case, the buccal swab/DNA evidence is admissible at trial. Id.
XV.
[¶ 27] Based on the foregoing and in accordance with 28 U.S.C. § 636(b)(1), this Court concludes that Red Bird's statements were unlawfully obtained in violation of his Sixth Amendment rights and cannot be used by the government at trial, except for impeachment purposes in the event he testifies. The Court further concludes that the buccal swab/DNA evidence obtained from Red Bird is the "fruit of a poisonous tree" and subject to the exclusionary rule but may be admitted into evidence at trial under the inevitable discovery exception to the rule. Accordingly, the Court
[¶ 28] RECOMMENDS that Red Bird's Motion to Suppress Statements and Evidence, Docket No. 18, be GRANTED in part and DENIED in part.