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United States v. Nelson

United States District Court, Eighth Circuit

May 7, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK NELSON, Defendant.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION

The matter before the court is Defendant Frank Nelson's Objections (docket no. 198) to United States Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 188), which recommends that the court deny Defendant's "Motion to Suppress" ("Motion") (docket no. 159) and "Amended Motion to Suppress" ("Amended Motion") (docket no. 167).

II. PROCEDURAL HISTORY

On August 22, 2012, the government filed an Indictment (docket no. 15) against Defendant and thirteen others. Count 1 of the Indictment charges Defendant with conspiring to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.

On February 4, 2013, Defendant filed the Motion, in which he argues that he did not voluntarily, knowingly and intelligently waive his Miranda [1] rights on September 5, 2012, because he was under the influence of heroin and, therefore, the court should suppress the statements he made on that date. On February 15, 2013, the government filed a Resistance (docket no. 164). On February 19, 2013, Judge Scoles held a hearing on the Motion. See Minute Entry (docket no. 166). Defendant appeared in court with his attorney, Mark C. Meyer. Assistant United States Attorney Lisa C. Williams represented the government. On that same date, Defendant filed the Amended Motion, in which he argues that Drug Enforcement Agency Task Force Officer ("TFO") Bryan Furman failed to sufficiently notify Defendant of his Miranda rights on September 5, 2012, and, therefore, the court should suppress Defendant's September 5, 2012 statements. Also on February 19, 2013, the government filed a Supplemental Brief (docket no. 168) regarding the Amended Motion, to which Defendant filed a Reply (docket no. 169). On February 22, 2013, Judge Scoles issued the Report and Recommendation, which recommends that the court deny the Motion and the Amended Motion. On February 25, 2013, Defendant filed his Objections. The matter is fully submitted and ready for decision.

III. RELEVANT FACTUAL BACKGROUND [2]

On September 5, 2012, Defendant was arrested on Count 1 of the Indictment and transported to the Black Hawk County Jail. There, TFO Furman questioned Defendant. The seventeen-minute interview was audio recorded. At the beginning of the interview, TFO Furman advised Defendant of his Miranda rights, stating:

Are you familiar with your rights? You have the right to remain silent. Anything you say can and will be used against you. You have a right to an attorney. If you can't afford one, the court will give you one. And if we start talking you can stop talking at any time.

Report and Recommendation at 3. Before beginning the questioning, TFO Furman stated, "Okay, we can start, and if you want to stop at any time, that's up to you. Sound good?" Id. at 4. TFO Furman then proceeded to ask Defendant questions, which Defendant answered. During the interview, Defendant admitted to using two to three bags of heroin a day and that he had used heroin that morning. On the audio recording, Defendant's speech is often quiet, mumbled and difficult to understand. TFO Furman testified that Defendant maintained eye contact throughout the conversation, made nonverbal cues that he understood the questions and responded to the questioning.

IV. STANDARD OF REVIEW

When a party files a timely objection to a magistrate judge's report and recommendation, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge must consider de novo any objection to the magistrate judge's recommendation."); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."). It is reversible error for a district court to fail to engage in a de novo review of a magistrate judge's report when such review is required. Lothridge, 324 F.3d at 600. Accordingly, the court reviews the disputed portions of the Report and Recommendation de novo.

V. ANALYSIS

Defendant objects to Judge Scoles's finding that TFO Furman's warnings to Defendant satisfied Miranda. Defendant also objects to Judge Scoles's finding that Defendant voluntarily, knowingly and intelligently waived his Miranda rights prior to making statements to law enforcement. Having conducted the required de novo review of the objected-to portions of the Report and Recommendation, the court deems it appropriate ...


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