USA v. Vu et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KATHERINE BORDEAUX,
Defendant.
5:21-CR-50046-JLV-03
REPORT AND RECOMMENDATION
Pending is Defendant’s Motion to Suppress (Doc. 29). 	A hearing was held
on Wednesday, May 5, 2021. 	Defendant was personally present and
represented by her attorney of record, Terry Pechota. 	The Government was
represented by the Assistant United States Attorney Megan Poppen. 	One
witnesses testified at the hearing, and one exhibits were received into evidence.
Based on a careful consideration of all the evidence, and counsel’s written and
oral arguments, the Court respectfully makes the following:
RECOMMENDATION
It is respectfully recommended that Defendant’s Motion to Suppress be
denied.
JURISDICTION
Defendant is charged in an Indictment with Conspiracy to Commit Bank
Fraud in violation of 18 U.S.C. § 1349, ten counts of Bank Fraud in violation of
18 U.S.C. § 1344(2), and two counts of Theft, Possession, or Receipt of Stolen
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Mail in violation of 18 U.S.C. § 1708. The pending Motion was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and United States
District Judge Jeffrey L. Viken’s Standing Order dated April 1, 2018.
FACTUAL BACKGROUND
On May 20, 2020, Dakotah Steakhouse received a call from an unknown
male inquiring about the balance of a gift card the restaurant knew to be
stolen. 	Instead of telling the male it was stolen, the employee made up an
amount and allowed the male to make a reservation. 	The manager then called
Detective Anthony Meirose with the Rapid City Police Department to have him
arrive at the restaurant the same time as the reservation.
Around 5:30 p.m., Dominic Kennedy and Angela Kennedy arrived at the
restaurant with the stolen gift cards. 	Upon their arrival, Detective Meirose
interviewed Dominic while Angela was present. 	During the interview, Angela
stated she received the gift cards from a man named Nick and another woman
who were already seated inside.1 At the conclusion of the interview, Dominic
was arrested and Angela was allowed to continue into the restaurant. Dominic
was loaded into a police cruiser to be transported to the Pennington County
Jail. 	Detective Meirose got into his own, unmarked police cruiser and began
following the transport vehicle. 	Not long into the drive, he received another call
from Dakotah Steakhouse requesting he come back to the restaurant, as
Angela, Nick, and Katherine were now unable to pay for their food.
1 The woman turned out to be the defendant, Katherine Bordeaux.
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As Detective Meirose walked up to the front doors of the restaurant with
the stolen gift cards in hand, he was approached by the defendant, who stated
that the cards were hers. 	He then asked her to help clear up the situation, and
she agreed to talk with him. 	The two separated themselves from the restaurant
and the interview began in front of Detective Meirose’s unmarked police
cruiser. 	For about 10 minutes, the interview continued outside. 	At this point,
Detective Meirose asked the defendant if she would sit in the front seat of his
cruiser. 	She agreed and let herself into the front passenger seat of the vehicle.
The defendant was interviewed for approximately 45 minutes, during
which she made several incriminating statements.
DISCUSSION
The defendant argues her statements to Detective Meirose made on May
20, 2020 should be suppressed for two reasons.2 First, the defendant argues
she was not advised of her Miranda rights and did not waive said rights. 	(Doc.
290). 	Second, she argues any statements she made were involuntary because
she was under the influence of drugs or alcohol at the time she made the
statements. Id.
The Government responds that the defendant was not in custody at the
time of her questioning, so Miranda warnings were not required. 	(Doc. 32).
They also argue the statements made by the defendant were voluntary due to
2 Counsel for the defendant also raised an argument at the hearing on this
motion that anything discovered during the search of the defendant’s purse
should also be suppressed. 	The Government responded that they will not
introduce into evidence anything found during the search, so the argument will
be denied as moot.
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the defendant’s age, experience with law enforcement, and intelligence and
because there existed no coercive police activity. 	Id.
1. The defendant was not in custody for purposes of Miranda.
The issue is whether the defendant was “in custody” for purposes of
Miranda. 	An individual is entitled to an advisement of Miranda when that
individual is “taken into custody for questioning.” 	United States v. Axsom, 289
F.3d 496, 500 (8th. Cir. 2002) (citing Miranda v. Arizona, 384 U.S. 436, 444
(1966)). 	Miranda requires that the individual be advised of “his right to be free
from compulsory self-incrimination and his right to assistance of counsel.” 	Id.
A suspect is in custody when he is “deprived of his freedom of action in
any significant manner.” 	Axsom, 289 F.3d at 500 (citing United States v.
Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990)). 	A court considers the totality of
the circumstances in deciding whether “a reasonable person in the suspect’s
position would have understood his situation to be one of custody.” 	United
States v. Anaya, 715 F.Supp.2d 916, 928 (D.S.D. 2010). 	The determination of
whether a subject is in custody considers both “the presence and extent of
physical and psychological restraints placed upon the person’s liberty during
the interrogation.” 	Axsom, 289 F.3d at 500.
To determine whether an interrogation occurs in custody, the court must
inquire “first, what were the circumstances surrounding the interrogation; and
second, given those circumstances, would a reasonable person have felt he or
she was not at liberty to terminate the interrogation and leave.” 	Thompson v.
Keohane, 516 U.S. 99, 112 (1995). 	The test focuses on how a “reasonable
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person in the subject’s situation would perceive [her] circumstances.”
Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). 	Moreover, the
“determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned.” 	Stansbury v. California, 511 U.S.
318, 323 (1994). 	Thus, “the only relevant inquiry” is whether a reasonable
person in Ms. Bordeaux’s position “would have felt at liberty to end the
interrogation and leave.” 	United States v. Brave Heart, 397 F.3d 1035, 1038–
39 (8th Cir. 2005).
In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), the
Eighth Circuit identified six factors to consider in determining whether an
individual is in custody for the purposes of Miranda:
1) whether the suspect was informed that he or she was free to
leave and that answering was voluntary; (2) whether the suspect
possessed 	freedom 	of 	movement; 	(3) 	whether 	the 	suspect
initiated contact or voluntarily acquiesced; (4) whether strong-
arm 	tactics 	or 	strategies 	were 	employed; 	(5) 	whether 	the
atmosphere was police-dominated; or, (6) whether the suspect
was placed under arrest at the end of questioning.
Id. 	“These factors are not exclusive; custody ‘cannot be resolved merely by
counting up the number of factors on each side of the balance and rendering a
decision accordingly.’” 	United States v. Elzahabi, 557 F.3d 879, 883 (8th Cir.
2009) (quoting United States v. Czichray, 378 F.3d 822, 827–28 (8th Cir.
2004)). 	The “most obvious and effective means of demonstrating that a suspect
has not been taken into custody” is an express advisement that the suspect is
not under arrest and that her participation in questioning is voluntary. 	Brave
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Heart, 397 F.3d at 1039 (quoting Griffin, 922 F.2d at 1349). 	“[N]o governing
precedent of the Supreme Court or this court has yet held that a person was in
custody after being clearly advised of her freedom to leave or terminate
questioning.” 	United States v. Henry, 3:15-CR-30119-RAL, 2016 WL 3339238,
at *5 (D.S.D. June 13, 2016) (quoting Brave Heart, 397 F.3d at 1039).
Here, it is clear the defendant was not in custody at the time she was
questioned by Detective Meirose. 	First, and perhaps most importantly, the
defendant was expressly advised that she was not under arrest and that she
did not have to speak with Detective Meirose. 	Specifically, Detective Meirose
told the defendant “I just want to tell you again, you don’t have to talk to me,
you’re not going to go to jail, but I would just like to hear your side of the
story.” 	(Ex. 1 at 6:03). 	Additionally, the defendant was not arrested at the
conclusion of the interview.
The defendant was also mostly free to move around as she pleased for
the entirety of the interview. 	The interview began outside Detective Meirose’s
unmarked police vehicle, at which time the defendant’s movements were wholly
unrestricted. 	Around 10 minutes into the recorded portion of the interview,
Detective Meirose asks the defendant “If you’re still going to talk to me, do you
mind just having a seat in the front passenger seat…?”. 	Id. at 9:46. 	She
agreed and let herself into the vehicle. 	The remaining 35 minutes of the
interview occurred in the police vehicle. 	While the defendant’s freedom of
movement was slightly impeded by nature of being in a police vehicle, she still
possessed an overall high degree of freedom of movement.
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The defendant also initiated the contact with Detective Meirose.
Detective Meirose testified that as he approached Dakotah Steakhouse with the
gift cards in hand, the defendant approached him and stated, “Those are
mine.” 	The interview proceeded from there. 	There were also no strong-arm
tactics or strategies employed during the course of the interview. 	Detective
Meirose spoke in a calm and non-confrontational tone for the majority of the
interview. 	Although there were a couple times during the interview when
Detective Meirose spoke up to confront the defendant with information contrary
to what she was telling him, he remained calm and did not issue any threats or
promises.
Lastly, the area was not police-dominated. 	The interview took place in
the parking lot of the Dakotah Steakhouse and in the front seat of Detective
Meirose’s police vehicle. 	At the time of the interview, that was the only police
vehicle in the parking lot.
Upon consideration of the factors outlined in Griffin, the court finds that
the defendant was not in custody at the time of her questioning and an
advisement of Miranda was not required. 	Additionally, because the defendant
was not entitled to a recitation of her Miranda rights, it matters not whether
she waived those rights.
2. The defendant’s statements were voluntary.
The burden of demonstrating that a defendant’s statement was voluntary
rests with the government, which must prove voluntariness by at least a
preponderance of the evidence. 	United States v. LeBrun, 363 F.3d 715, 724
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(8th Cir. 2004). 	Due process requires that confessions be voluntary. 	See
Brown v. Mississippi, 297 U.S. 278, 285–86 (1936); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 225–26 (1973) (explaining that voluntary
confession may be used against defendant while the use of involuntary
confession offends due process). 	“The appropriate test for determining the
voluntariness of a confession is ‘whether ... pressures exerted upon the suspect
have overborne his will.’” 	United States v. Meirovitz, 918 F.2d 1376, 1379 (8 th
Cir.1990) (quoting United States v. Jorgensen, 871 F.2d 725, 729 (8th
Cir.1989)).
Statements are involuntary if they are “extracted by threats, violence, or
express or implied promises sufficient to overbear the defendant’s will and
critically impair his capacity for self-determination.” 	LeBrun, 363 F.3d at 724
(citing Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir. 2001)). 	“A
statement is voluntary if it is the product of an essentially free and
unconstrained choice by its maker.” 	United States v. Anaya, 715 F.Supp.2d
916, 931 (8th Cir. 2010) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 225-
26 (1973)).
When assessing whether the defendant’s will was overborne, the court
considers “the conduct of the officers and the characteristics of the accused.”
LeBrun, 363 F.3d at 724. 	Relevant factors include the defendant’s prior
experience with law enforcement; the nature of the interrogation, including its
duration and location; whether the defendant was in custody or otherwise
restrained; whether law enforcement employed hostile tactics; and defendant’s
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intelligence and mental state. 	See, e.g., id. at 726; United States v. Turner,
157 F.3d 552, 555–56 (8th Cir. 1998).
Low intelligence or impaired mental functioning are not determinative of
voluntariness without some evidence of coercive police activity. 	Colorado v.
Connelly, 479 U.S. 157, 165 (1986) (“A statement rendered by [a mentally
incompetent individual] might be proved to be quite unreliable, but this is a
matter to be governed by the evidentiary laws of the forum . . . and not by the
Due Process Clause[.]”); Turner, 157 F.3d at 555 (finding confession voluntary
where defendant “was clearly intelligent to understand his rights” even though
he was intoxicated with PCP at time of confession and his IQ was in “low
average to borderline range”). 	The voluntariness of a statement is judged by
the totality of the circumstances. 	Anaya, 715 F.Supp.2d at 932.
Here, the defendant argues her statements were involuntary due to the
fact that she was under the influence of drugs or alcohol at the time she made
the statements. 	The defendant introduces no evidence in her memorandum in
support of this contention. 	Additionally, counsel for the defendant did not ask
Detective Meirose any questions regarding whether the defendant appeared
under the influence of drugs or alcohol at the time of the questioning and has
otherwise failed to provide any evidence that she was under the influence of
any substance at the time of questioning.
The court, having listened to the audio recording of the interview, finds
that the defendant was coherent and understood what was being asked of her.
Additionally, as stated above, even if the defendant was under the influence at
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the time of questioning, this fact alone will not render a statement involuntary.
There must be also some coercive police activity “sufficient to overcome a
defendant’s will.” LeBrun, 363 F.3d at 724 (citing Simmons v. Bowersox, 235
F.3d 1124, 1132 (8th Cir. 2001)). 	Although Detective Meirose rose his voice to
confront the defendant with evidence against her, he remained calm and
collected throughout the interview. 	He did not threaten or promise her
anything, and did not employ any hostile or coercive tactics.
Additionally, the defendant is 50 years old and of at least average
intelligence. 	She is a high school graduate and attended some college at both
San Francisco State University and Oglala Lakota College. (Doc. 26). 	She
communicated well with Detective Meirose and was clearly able to track the
conversation. Lastly, the defendant appears to have a fairly extensive criminal
history and a relatively thorough familiarity with the justice system. 	As such,
both the conduct of the officer and the characteristics of the defendant point
towards the conclusion that the defendant’s statements were voluntary.
Therefore, the court finds that the government has met its burden of
showing the defendant’s statements were made voluntarily.
CONCLUSION
For the aforementioned reasons, it is respectfully
RECOMMENDED that Defendant’s Motion to Suppress (Doc. 29) be
denied.
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NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 9th day of July, 2021.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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