United States v. Thunderhawk, No. 14-3136 (8th Cir. 2015)
Annotate this CaseAgent O’Neil interviewed V.R.B., who told him that in 2008, when she was about eight years old, she awakened when someone lay down in her bed and touched her vaginal area through her clothes. V.R.B. pretended to remain asleep, but got up after the person left and saw her mother's friend Thunderhawk in her living room. Agents went to Thunderhawk’s home and talked to him in their car, stating that he could end the interview at any time, he was not under arrest, and he would not be arrested at the end of the interview regardless of what he said. He admitted to the incident involving V.R.B., saying he had been drinking heavily. In a taped statement, O’Neil reviewed the interview and gave Thunderhawk an opportunity to correct mistakes. O’Neil later drove Thunderhawk to a polygraph test, stating that the test was voluntary, he could stop at any time, and O’Neil would drive him home. Thunderhawk signed written Miranda warnings and was again advised that the polygraph was voluntary and he could stop at any time. Thunderhawk again admitted to the incident. The Eighth Circuit affirmed Thunderhawk’s conviction for abusive sexual contact of a child under 12 years of age, 18 U.S.C. 2244(a)(5), and sentence of 41 months in prison, upholding denial of a motion to suppress his allegedly involuntary confessions; instructions to the jurors to draw reasonable inferences from their experience and common sense; and denial of motions for mistrial based on improper closing arguments.
Court Description: Loken, Author, with Bye and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. The officer's statement that defendant would not be arrested at the end of the interview did not render defendant's confession involuntary as it was not the type of coercive police activity that would overbear defendant's will; Missouri v. Siebert does not apply as defendant was not in custody at the time he made his incriminating statements; the district court did not err in instructing the jury that in reaching their verdict they were permitted to draw "such reasonable inferences as you feel are justified in light of experience and common sense;" challenges to government's closing argument rejected as the challenged statements correctly stated the elements of the offense and did not argue that defendant had the burden of proof on his innocence; no error in denying a reduction for acceptance-of-responsibility; Apprendi-based challenge to the restitution order covering victim's mental health rejected; sentence was not substantively unreasonable.
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