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United States v. Mahkimetas

United States District Court, E.D. Wisconsin

April 4, 2018




         On December 19, 2017, a grand jury returned an indictment charging Defendant Ricki A. Mahkimetas, Jr., a Native American Indian, with two counts of attempted aggravated sexual abuse involving children under the age of twelve within the boundaries of the Menominee Indian Reservation in violation of 18 U.S.C. §§ 2241 and 1153. A superceding indictment returned on February 14, 2017, added a similar third count. The case is before the court on Mahkimetas' motion to suppress the statement he gave to law enforcement on or about December 21, 2017, as he was being transported from the tribal jail to federal court for his initial appearance. Mahkimetas claims that the statement was taken when law enforcement initiated further interrogation with him after he had previously invoked his right to counsel in violation of the bar to further questioning established in Arizona v. Edwards, 451 U.S. 477, 484-85 (1981). Alternatively, Mahkimetas argues, based on the fact that he had previously been charged in tribal court with essentially the same charges, that law enforcement violated his Sixth Amendment right to counsel. For the reasons that follow, Mahkimetas' motion is denied.


         The material facts are not in dispute; most were stipulated. Mahkimetas was first interviewed by FBI Special Agent Sarah Deamron and Tribal Detective Todd Otradovec about the events underlying the charges on September 5, 2017. Mahkimetas was in custody at the Menominee Tribal Police Department at the time and was advised of his Miranda rights. He initially waived his rights and agreed to answer questions. At some point, however, he changed his mind, and clearly and unequivocally invoked his right to counsel. The interview was immediately terminated, and Mahkimetas was returned to the Tribal Jail in the same building.

         Mahkimetas was released from tribal custody to the community on October 7, 2017. On October 25, 2017, Mahkimetas was arrested on tribal charges for the same conduct and placed in the Menominee Tribal Jail where he remained in custody on a cash bond. On December 19, 2017, the grand jury sitting in Milwaukee indicted him on federal charges arising out of the same conduct. Two days later, on December 21, 2017, Mahkimetas was transported by SA Deamron and Detective Otradovec from the Menominee Tribal Jail to the district court in Green Bay for his initial appearance on the federal charges.

         The district court in Green Bay is about an hour drive from the Menominee Tribal Jail. After he was retrieved from the Tribal Jail, Mahkimetas was handcuffed and placed in the back seat of SA Deamron's F150 pick-up truck with Detective Otradovec seated next to him. SA Deamron drove. As they left the jail, SA Deamron explained to Mahkimetas where they were going and what would occur. She told him he had been indicted on two counts of sexual abuse of a minor and he would be transported to Green Bay for his initial appearance, where he would have his initial appearance. Further into the drive, SA Deamron explained to Mahkimetas that he would have a right to a trial and that if he went to trial “the three little girls would be brought in and would testify to the acts that happened to them that he was charged with.” SA Deamron also told Mahkimetas that it would be beneficial to him to admit what he had done and this was his opportunity to do so. She explained that she didn't want the girls to have to testify.

         Detective Otradovic likewise spoke with Mahkimetas about the importance of helping himself. There was also some discussion of the cultural traditions they shared, and Mahkimetas said he had been reading the Bible. Detective Otradovic suggested that religion and the native cultural traditions can help in dealing with the difficulties he was facing. Mahkimetas seemed receptive to what Detective Otradovic was saying and seemed less subdued. A little more than half-way into the drive, Mahkimetas told Detective Otradovic that he wanted to make a statement but would first like to smoke a cigarette.

         Detective Otradovic conveyed Mahkimetas' request to SA Deamron, and she pulled off the highway at a gas station to buy some cigarettes. When she returned to her truck, she gave Mahkimetas a soft drink and turned on her recording device. As SA Deamron pulled back onto the highway, Detective Otradovic read Mahkimetas his Miranda rights, which he waived. Mahkimetas then proceeded to make a recorded statement about the offenses with which he was charged. When they arrived at the federal courthouse in Green Bay, Mahkimetas was allowed to smoke a cigarette before they entered. It is the audio recorded statement taken on the way to court that Mahkimetas now moves to suppress on the ground that it was obtained in violation of the rights established in Miranda v. Arizona, 384 U.S. 436 (1966), and Arizona v. Edwards, and his Sixth Amendment right to counsel.


         It should be noted at the outset that Mahkimetas does not offer any argument that his confession was coerced or resulted from the infliction of physical pain or discomfort. In other words, he does not contend that his statements were compelled; that he was forced to confess. To the contrary, the evidence suggests the primary appeal by the officers was more moral than physical. Mahkimetas' arguments for suppression are instead based upon the technical application of the set of prophylactic rules created by the Court to insure coercive measures by law enforcement are not used. As explained below, I conclude that his arguments rest on a misapplication of those rules.

         A. Fifth Amendment and Waiver of Miranda Rights

         In Miranda v. Arizona, the Court adopted a set of prophylactic measures that law enforcement officers are required to comply with in order to protect a suspect's Fifth Amendment right from the “inherently compelling pressures” of custodial interrogation. 384 U.S. at 467. The primary requirement adopted by the Court is that before the interrogation begins, the officer must give the suspect the familiar Miranda warnings and obtain a knowing and voluntary waiver of the suspect's right to remain silent and his right to have an attorney assist him, even if he cannot afford to hire one on his own. Id. at 473-75. In Edwards, the Court added to the protections afforded a suspect in Miranda by requiring additional safeguards after the suspect invokes his right to counsel:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights . . . . [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the ...

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