United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BRISBOIS U.S. MAGISTRATE JUDGE
matter comes before the undersigned United States Magistrate
Judge pursuant to a general assignment, made in accordance
with the provisions of Title 28 U.S.C. § 636 and Local
Rule 72.1, upon Defendant Donald Wayne Yellow's
(“Defendant”) Pretrial Motion to Suppress
Statements. [Docket No. 24]. The Court held a motions hearing
on January 3, 2018, regarding the Defendant's pretrial
motions. At the motions hearing, the parties
requested the opportunity to submit supplemental briefing,
which was completed on January 18, 2018, and after which
Defendant's Pretrial Motion to Suppress Statements,
[Docket No. 24], was taken under advisement.
reasons discussed herein, the Court recommends that
Defendant's Pretrial Motion to Suppress Statements,
[Docket No. 24], be DENIED.
BACKGROUND AND STATEMENT OF FACTS
is charged with two counts of aggravated sexual abuse of a
child under twelve (12) years of age, in violation of 18
U.S.C. §§ 1151, 1153(a), 2241(c), 2246(2)(A),
2246(2)(D), and 3359(e). (Indictment [Docket No. 12]).
record presently before the Court indicates that on October
10, 2017, Defendant was arrested pursuant to a pending
federal arrest warrant, and he was transported to the Red
Lake Law Enforcement Center. (January 3, 2018, Motions
Hearing, Digital Recording at 2:11-2:13 p.m.). Upon arriving
at the Red Lake Law Enforcement Center, but before being
booked into the Red Lake Detention Center, Defendant was met
by Federal Bureau of Investigation's Special Agent Zane
Nevala (“SA Nevala”), and Defendant was directed
into the front passenger's seat of a Special Agent Justin
Montgomery's (“SA Montgomery”) SUV which was
parked in the Red Lake Law Enforcement Center parking lot.
(Id. at 2:11-2:18 p.m.). SA Nevala sat in the front
driver's seat of the vehicle while SA Montgomery and Red
Lake Criminal Investigator Paul Kwako (“CI
Kwako”) sat in the back seat of the vehicle.
(Id. at 2:03-2:05 p.m., 2:15-2:17 p.m.).
Nevala then began interviewing Defendant. SA Nevala
recorded the interview. At the time of the interview, SA
Nevala testified that he was dressed in his typical civilian
attire including a pair of jeans and a shirt. (Id.
at 2:08-2:09 p.m.). SA Nevala also testified that he had no
issues understanding Defendant, that Defendant responded
appropriately to questions asked, that Defendant appeared
“normal physically, ” that Defendant did not
appear to be under the influence of any drugs or alcohol, and
that Defendant seemed psychologically fine without any
indication of mental health disabilities although he became a
bit emotional at times. (Id. at 2:05- 2:06 p.m.,
2:08-2:09 p.m., 2:20-2:21 p.m.). SA Nevala also testified
that Defendant remained handcuffed with his hands in front of
him during the interview. (Id. at 2:13-2:14 p.m.).
Nevala began the interview by informing Defendant that he
believed CI Kwako had already discussed Defendant's
rights with Defendant, but SA Nevala would be going over them
again. Specifically, the following exchange took place:
SA Nevala: I'll read this quick and have you sign it.
It's the same thing, just federal form here.
[Reading Form] Before we ask you any questions you must
understand your rights. You have the right to remain silent.
Anything you say can be used against you in court. You have
the right to talk to a lawyer for advice before we ask you
any questions. If you can't afford a lawyer, one will be
appointed for you before any questioning, if you wish. If you
decide to answer questions now without a lawyer present, you
have the right to stop answering at any time.
At the bottom here it says: I've read this statement of
my rights and I understand what my rights are. At this time
I'm willing to answer questions without a lawyer present.
Do you have any questions on that or do you understand what
I've just read?
Defendant: I understand.
SA Nevala: Just sign right there.
(Gov't Ex. 1 at 0:00-1:30). Defendant then signed the Advice
of Rights form, and the form was witnessed by SA Nevala and
SA Montgomery. (Gov't's Ex. 3).
Defendant signed the Advice of Rights form, SA Nevala began
discussing various topics with Defendant, including
Defendant's current address; Defendant's residence
history, as well as, who lived with him; which children lived
with him; and Defendant's parole history. (Gov't Ex.
1 0:00-4:02). When asked if Defendant knew why the officers
were speaking with Defendant, he acknowledged that he knew,
but he didn't understand why they were not speaking to a
foster child who Defendant asserted could be the one sexually
assaulting the alleged child victims. (Id. at
4:00-7:45, 27:50-31:05). SA Nevala explained to Defendant
that the alleged child victims had been interviewed, and the
children had said that Defendant was the one who had sexually
assaulted them. (Id. at 8:00-10:30). SA Nevala and
Defendant's then discussed Defendant's prior sexual
assault conviction in federal court, the weight a
victim's testimony could carry in a trial, and
Defendant's history of being sexually assaulted as a
child. (Id. at 10:30-14:05). Defendant repeatedly
asserted that the “kids” just wanted him out of
the house, and that Janet probably told the “kids”
what to say to law enforcement in an effort to get Defendant
out of the home. (See, e.g., Id. at
14:05-15:18, 17:01-18:05, 25:50-26:10, 38:45- 40:40).
Defendant also repeatedly asserted throughout the interview
that the alleged child victims' grandfather, Steve, was
inappropriate around the children and encouraged their
inappropriate dressing. (See, e.g., Id. at
Defendant discussed the circumstances of his prior
conviction, SA Nevala explained to Defendant, that with his
prior conviction, he was now looking at a possible life
sentence in the present case. (Id. at 17:05-23:05).
Defendant responded that they would probably send him back to
prison, but he would rather be dead than spend life in
prison. (Id. at 23:10- 24:45). SA Nevala explained
that the children had provided detailed testimony-which SA
Nevala had no reason to disbelieve-and when combined with
Defendant's previous conviction, things “didn't
look good for” Defendant. (Id. at
26:30-34:05). SA Nevala also said that, while under the
circumstances Defendant could be looking at a life sentence,
he could benefit from just telling the truth. (Id.
Nevala and CI Kwako then stepped out of the vehicle.
(Id. at 40:33-41:05). While SA Nevala and CI Kwako were
outside, Defendant was permitted to place a phone call to
Olivia-the woman with whom he was living-to describe what was
happening and where he would be going. (Id. at
41:05-43:20). When SA Nevala reentered the vehicle, Defendant
stated that it was “fucking hot” to which SA
Nevala responds “yeah, it is kind of warm.”
(Id. at 43:20- 43:35). SA Nevala then started the
vehicle, and he turned on the air condition. (Id. at
turning on the air conditioner, SA Nevala again began
discussing the benefits of Defendant's being honest and
explaining the situation. Specifically, the following
exchange took place:
SA Nevala: Donald, typically, you know-and prior to coming to
Red Lake I worked mostly violent crime and drug cases. And
I'll give you an example of a drug case and the way that
the federal system works. You said it hadn't really been
explained to you before, but-and typically say we arrest a
guy and he's looking at twenty years to life, forty years
to life because we caught him with five pounds of meth or 10
pounds of meth. Now, he can say-you know, I can sit down and
try to talk to him and he can say, you know, “get lost.
I'm going to go to court, go to trial, you know take my
chances, ” and whatever. And if he gets convicted,
he's going to go away for whatever he's-the guideline
range is twenty to life forty to life, somewhere along those
Now, what I always do is sit down with them and say look
explain the way the system works and give examples of reasons
why you would want to come clean, do the right thing,