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United States v. Yellow

United States District Court, D. Minnesota

February 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
Donald Wayne Yellow, Defendant.

          REPORT AND RECOMMENDATION

          LEO I. BRISBOIS U.S. MAGISTRATE JUDGE

         This 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.[1] 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.

         For reasons discussed herein, the Court recommends that Defendant's Pretrial Motion to Suppress Statements, [Docket No. 24], be DENIED.

         I. BACKGROUND AND STATEMENT OF FACTS

         A. Background

         Defendant 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]).

         B. Facts

         The 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.).[2] 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.).

         SA Nevala then began interviewing Defendant.[3] 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.).

         SA 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).[4] Defendant then signed the Advice of Rights form, and the form was witnessed by SA Nevala and SA Montgomery. (Gov't's Ex. 3).[5]

         After 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[6] 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 15:18-17:01).

         After 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. at 34:10-40:33).

         SA Nevala and CI Kwako then stepped out of the vehicle. (Id. at 40:33-41:05).[7] 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 43:35- 44:03).

         After 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 lines.
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, ...

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