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United States v. Kisslinger

United States District Court, D. Minnesota

April 8, 2019

United States of America, Plaintiff,
v.
Karry Dale Kisslinger, Defendant.

          Joseph H. Thompson, Esq., Assistant United States Attorney, counsel for Plaintiff.

          Douglas L. Micko., Esq., and Douglas Olson, Esq., Assistant Federal Public Defender, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This matter is before the Court on Defendant's Motion to Suppress Statements, Admissions, and Answers (Doc. No. 19). On February 26, 2019, the Court held a hearing on the motion at which the parties were represented by counsel. (Doc. No. 35.) At the hearing, Special Agent Glenn Moule from the Federal Bureau of Investigation (“FBI”) testified concerning the circumstances surrounding Defendant's statements that are the subject of the Defendant's motion. The Government offered and the Court received in evidence two exhibits: (1) an audio recording of the interview at issue; and (2) a target letter to Defendant dated January 18, 2018. (Doc. No. 32, Exhibit List.) The parties submitted post-hearing briefing as ordered by the Court. (Doc. Nos. 39, 40.) As discussed below, the Court recommends that Defendant's motion be denied.

         BACKGROUND [1]

         Special Agent Moule is the case agent for the investigation of this fraud case against Defendant. (Tr. 9.) He testified that Defendant used to operate a small wind turbine company, and that the allegation in this case is “that multiple customers of his provided him with money that he failed to deliver their product, and he used some of their funds for personal expenses.” (Tr. 9.)

         On January 23, 2018, Special Agent Moule and another FBI agent interviewed Defendant at his single-family home in Humble, Texas. (Tr. 9-10.) At that time, Special Agent Moule had been working on this case for well over a year. (Tr. 19.) Both agents were wearing business suits and carrying a firearm; however, the firearms were not visible. (Tr. 10.) Without providing advance notice, the agents arrived at Defendant's home between 8:00 and 8:30 a.m. (Tr. 11, 17.) When they rang the doorbell, Defendant came to the door and Special Agent Moule identified himself as an FBI agent. (Tr. 11.) Special Agent Moule told Defendant he was interested in some information regarding his wind turbine business he had in Minnesota and asked Defendant if he could talk to him. (Tr. 11, 18.) Defendant appeared surprised that the FBI was at his door but allowed the agents inside his house and they all sat town at a table about twenty feet from the door. (Tr. 11.)

         Special Agent Moule told Defendant that he was not under arrest, that he did not have to talk to them, that he could ask them to leave his house at any time, and that the decision was completely up to Defendant. (Tr. 11; 2/26/19 Hr'g Ex. 2.) Defendant agreed at that time to talk to Special Agent Moule. (Tr. 11.) During their conversation, which was recorded, Defendant did not at any time ask for a lawyer and did not say that he did not want to talk.[2] (Tr. 11-12.) The agents did not handcuff Defendant, nor did they restrain or restrict his movements in any way. (Tr. 12.) The conversation was casual and lasted for approximately one hour. (Tr. 12, 18.) About half-way through the interview, Defendant got up and went to his front office area near the front door to check on a phone call that he missed. (Tr. 12.) After about ten seconds, Special Agent Moule got up to see where he was, for his own personal safety reasons. (Tr. 12.) When Defendant returned to the table, the interview resumed.

         At the end of the interview, while still sitting at the table, Special Agent Moule handed Defendant a target letter from the U.S. Attorney's Office and informed him that he was the subject of a criminal investigation. (Tr. 14, 21.) Defendant asked Special Agent Moule what wire fraud was (which was referenced in the target letter), and Special Agent Moule talked to him about it.[3] (Tr. 14, 16.) Special Agent Moule also told Defendant that he could contact the U.S. Attorney's Office if he had any other questions. (Tr. 14.) Defendant asked Special Agent Moule for his business card, which Special Agent Moule gave to him along with his cell phone number, and then the agents got up and left after thanking Defendant for his time. (Tr. 14.) The agents did not arrest Defendant at that time. (Tr. 16.) Defendant was later indicted in November 2018, and he thereafter self-reported to the District of Minnesota for his initial appearance. (Tr. 16.)

         DISCUSSION

         Defendant challenges the admissibility of the statements he made to FBI agents on January 23, 2018, on grounds that he was provided no Miranda warnings when they were required. The Government opposes Defendant's motion to suppress and argues that the January 2018 interview was both non-custodial and voluntary, and therefore Miranda warnings were not required.

         To use a defendant's statements made during a custodial interrogation against him at trial, government agents must provide a Miranda warning prior to questioning. The warning must inform a defendant that he has the right to remain silent, that anything he does say can be used against him as evidence, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him. Miranda v. Arizona, 384 U.S. 436, 444 (1966). These warnings need not follow a precise formulation, and the “inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (quotations and alterations removed).

         A custodial interrogation that triggers the need for Miranda warnings is one that involves “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. When analyzing whether a particular defendant was in custody at the time of an interrogation, “the ultimate inquiry is simply whether there [was] . . . restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotations omitted); see also United States v. Huether, 673 F.3d 789, 794 (8th Cir. 2012) (“To determine whether a defendant was in custody for Miranda purposes, a court looks to the totality of the circumstances confronting the defendant at the time of the interview, and asks whether a reasonable person in his position would consider his ...


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