United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
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.
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.)
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.)
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
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.
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.
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.
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).
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
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
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 ...