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United States v. Damon

United States District Court, D. Montana, Great Falls Division

November 12, 2019



          Brian Morris United States District Court Judge

         A Grand Jury indicted Defendant Mychal Thomas Damon on one count of Abusive Sexual Contact, in violation of 18 U.S.C. §§ 1153(a) and 2244(a)(5). (Doc. 1.) Damon filed a Motion to Suppress Statements on August 12, 2019. (Doc. 22.) The Government opposes the motion. (Doc. 35.) The Court held a hearing on Damon's motion on September 16, 2019. (Doc. 44.)


         Law enforcement responded to the hospital on the Fort Peck Indian Reservation after a mother reported that she suspected that her daughter, Jane Doe, had been sexually abused. (Doc. 35 at 2.) Jane Doe underwent a forensic interview and indicated that Damon had touched her vagina. (Id.)

         Damon met FBI Special Agents David Burns and Burke Lanthorn (SA Burns and SA Lanthorn) in the FBI office in Glasgow, Montana on January 26, 2019. (Doc. 23 at 1.) During an hour-long interrogation, Damon admitted to holding the victim, but not to touching her inappropriately. (Id.) Damon reported during this interview that Jane Doe and her mother had stayed at Damon's house because they had locked themselves out of their house. (Doc. 35 at 3.) Doe got up from the couch during the night and was cold and Damon allowed her to sit on his lap. (Id.) Doe's mother woke up in the middle of the night and took Doe from Damon. (Id.) Damon agreed to return to the FBI office at a later date to submit to a polygraph examination. (Doc. 23 at 2.)

         Damon returned to the FBI office in Glasgow on March 13, 2019, for the polygraph examination. (Id.) Special Agent Stacey Smiedala (SA Smiedala) was present, along with SA Burns and SA Lanthorn. (Id.) SA Burns and SA Lanthorn left the interview room. SA Smiedala conducted the pre-polygraph interview beginning at 9:15 a.m. (Doc. 35 at 4.)

         SA Smiedala presented an Advice of Rights Form and a Consent to Interview with Polygraph Form to Damon. Damon signed both forms. (Doc. 24 at 6-7.) SA Smiedala did not record his discussion with Damon. (Doc. 23 at 2.) SA Burns and SA Lanthorn observed the interview from a different room through a video monitor, but could not hear any of the discussion. (Doc. 35 at 4.) Damon admitted to touching Doe inappropriately at some point during his discussion with SA Smiedala. SA Smiedala informed SA Burns and SA Lanthorn.

         SA Burns joined Damon and SA Smiedala in the conference room. The agents then conducted a summary recording of Damon's statement at about 9:58 a.m. (Doc. 35 at 5-6.) The summary recording reflects Damon's admission for the first time that he touched Doe's vagina while they were seated on the recliner. Damon acknowledged in the recording that he was treated fairly and had not been forced to make any statement.

         Damon now requests that the Court suppress his statements. Damon argues that the statements had not been voluntary. Damon argues that SA Smiedala's failure to record the pre-polygraph interview leaves no way to know what happened during the pre-polygraph interview. (Doc. 23 5-6.) Damon argues that admission of only the recorded portion of the discussion will violate his due process rights. (Id.)


         Involuntary statements violate a defendant's right to due process. United States v. Miller, 984 F.2d 1028, 1030 (9th Cir. 1993). Physical and psychological pressure may lead to an involuntary confession. Miller, 984 F.2d at 1030. The government has the burden to prove by a preponderance of the evidence the voluntariness of a defendant's confession. Lego v. Twomey, 404 U.S. 477, 489 (1972). A statement is voluntary if it is “the product of a rational intellect and a free will.” Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989). A court looks to the totality of the circumstances when analyzing the admissibility of a defendant's statements. Withrow v. Willams, 507 U.S. 680, 689 (1993).

         Courts consider whether the government obtained a confession by physical or psychological coercion or by improper inducement so as to overbear the suspect's will. United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). Courts evaluate various factors in determining whether a person had provided a statement voluntarily: the suspect's age and intelligence; whether law enforcement advised the suspect of his constitutional rights; how long law enforcement detained the suspect; whether the questioning was prolonged and repeated; and whether law enforcement used physical punishment such as the deprivation of food or sleep. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003).

         Law enforcement officers may confront suspects with evidence, appeal to defendants' emotions, and even provide false or misleading information. See, e.g., Fracier v. Cupp, 394 U.S. 731, 737-39 (1969); Ortiz v. Uribe, 671 F.3d 863, 870-72 (9th Cir. 2011); United States v. Moreno-Flores, 33 F.3d 1164, 1168-70 (9th Cir. 1994). A confession proves voluntary as long as it remains the “product of the suspect's own balancing of competing considerations.” Miller, 984 F.2d at 1031.

         The Ninth Circuit in United States v. Haswood, 350 F.3d 1024 (9th Cir. 2003), considered the voluntariness of a suspect's confession to an FBI agent after having undergone an unrecorded polygraph examination. The suspect in Haswood agreed to take a polygraph examination and signed the standard FBI Advice of Rights Form and Consent to Polygraph Form at the ...

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