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United States v. Birdrattler

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

November 12, 2019



          Brian Morris United States District Court Judge

         A Grand Jury indicted Defendant Joshua James Birdrattler (“Birdrattler”) on one count of Aggravated Sexual Abuse, in violation of 18 U.S.C. §§ 1153(a) and 2241(a)(1). (Doc. 1.) Birdrattler filed a Motion to Suppress Statements on September 16, 2019. (Doc. 18.) The Government opposes the motion. (Doc. 27.) The Court held a hearing on Birdrattler's motion on October 8, 2019. (Doc. 33.)


         Jane Doe reported that Birdrattler had sexually assaulted her sometime between the late-night hours of February 15, 2018, and the early-morning hours of February 16, 2018. (Doc. 27 at 2.) Doe received immediate medical care at the Indian Health Services Building in Browning, Montana. (Doc. 20 at 1.) Medical professionals conducted a sexual assault examination. (Doc. 20 at 1.) The anal swab test results positively identified Birdrattler's DNA. (Doc. 20 at 1.)

         Birdrattler told law enforcement officers during initial interviews that he and Doe had engaged in consensual sexual activity. Birdrattler did not admit to any nonconsensual sexual activity. Special Agent Steven Snyder (“SA Snyder”) contacted Birdrattler by telephone on February 28, 2019. (Doc. 19-1 at 1.) SA Snyder confirmed that Birdrattler would be willing to participate voluntarily in a polygraph examination. (Id.) Birdrattler arrived at the federal building in Browning, Montana, for his scheduled polygraph examination on April 3, 2019. (Doc. 19 at 2.) SA Snyder led Birdrattler to the interview room and introduced Birdrattler to Special Agent Stacey Smiedala (“SA Smiedala”).

         SA Snyder left the interview room, leaving SA Smiedala and Birdrattler alone. SA Smiedala presented an Advice of Rights Form and a Consent to Interview with Polygraph Form to Birdrattler. (Docs. 19-2 & 19-3.) SA Smiedala testified that he read portions of the forms out loud to Birdrattler and that Birdrattler read portions of the forms out loud to SA Smiedala. (Doc. 35 at 11-13.) Birdrattler did not recall reading portions of the forms out loud to SA Smiedala and testified that he believed he had to sign the forms. (Id. at 65-66.) Birdrattler and SA Smiedala signed the forms through electronic signatures on the screen of Smiedala's computer at 1:25 p.m. and 1:26 p.m, respectively. (Docs. 19-2 & 19-3.)

         SA Smiedala conducted what he described as a pre-polygraph interview with Birdrattler. (Doc. 20 at 2.) Birdrattler admitted for the first time during this pre-polygraph interview that he had engaged in nonconsensual sexual activity with Jane Doe. SA Smiedala testified that FBI policy prohibits him from recording any portion of a polygraph examination, including the pre-polygraph interview. (Doc. 35 at 29-30.)

         At the end of the pre-polygraph interview during which Birdrattler admitted for the first time to having nonconsensual sexual activity with Jane Doe, Birdrattler agreed to provide a recorded summary of the statements that he had made. (Doc. 20 at 2.) SA Smiedala testified that he turned on his recording device and that Birdrattler made a statement. (Doc. 35 at 20.) SA Smiedala subsequently discovered that the recorder had not operated properly when Birdrattler made his statement. (Doc. 20 at 2.) SA Smiedala requested that SA Snyder enter the interview room. (Doc. 35 at 21-22.)

         Birdrattler agreed to provide the statement again. (Id. at 22.) SA Smiedala and SA Snyder recorded Birdrattler's statement. (Id.) Birdrattler admitted in the audio recording to having nonconsensual anal sex with Jane Doe. (Doc. 21, Def. Ex. 501.) Birdrattler also stated that SA Smiedala treated him fairly, that Birdrattler had not been forced to make the statement, and that SA Smiedala had not made any promises in return for Birdrattler's statement. (Id.) The interview ended at 2:57 p.m. Birdrattler left the office without having taken a polygraph examination. (Doc. 20 at 2.)

         Birdrattler now requests that the Court suppress the statements that he made on April 3, 2019. (Doc. 19 at 3.) Birdrattler argues that the statements had not been voluntary and that no way exists to know what SA Smiedala did during the pre-polygraph interview because SA Smiedala failed to record it. (Doc. 19 at 6.). (Id.) Birdrattler argues that admission of only the recorded portion of the discussion will violate his due process rights. (Doc. 19 at 7.)


         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 ...

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