United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court is the Report and Recommendation (ECF No.
1277) entered by Magistrate Judge Peggy A. Leen on January
11, 2017, denying Defendant Gregory P. Burleson's
(“Defendant's”) Motions to Suppress (ECF Nos.
876, 982). Defendant timely filed his Objection (ECF No.
1344), to which the Government timely filed a Response (ECF
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging
Defendant with eleven counts related to a confrontation on
April 12, 2014, with Bureau of Land Management
(“BLM”) Officers in Bunkerville, Nevada. (ECF No.
first Motion to Suppress, Defendant seeks to suppress
statements that he made in a videotaped interview with
Longbow Productions Company (“Longbow
Productions”) on October 27, 2014, because he was
“extremely intoxicated.” (First Mot. to Suppress
1:17-19, ECF No. 897). Defendant's second Motion to
Suppress then seeks to suppress a recorded phone call on
January 16, 2015, between Defendant and a Federal Bureau of
Investigation (“FBI”) Special Agent because this
conversation was the “direct product of the earlier
unconstitutional admissions he made to the
‘Longbow' agents.” (Second Mot. to Suppress
1:22-23, ECF No. 982). Defendant requested an evidentiary
hearing in both Motions to Suppress. In her Report and
Recommendation, Judge Leen rejected these arguments and
recommended denial of both Motions without an evidentiary
hearing. (R. & R. 6:19-27, 10:5- 12:2, ECF No. 1277).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. R. IB 3-2. Upon the filing of such objections, the
Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations of the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB
asserts several objections to Judge Leen's Report and
Recommendation denying his Motion to Dismiss. (Obj., ECF No.
1344). First, Defendant argues that Judge Leen erred in not
allowing an evidentiary hearing. (Id. 2:1-3:22).
Second, Defendant contends that Judge Leen erred in finding
Defendant's statements to Longbow Productions voluntary
under the totality of the circumstances. (Id.
3:23-5:25). Third, Defendant asserts Judge Leen erred in not
finding his phone call with the FBI Special Agent to be fruit
of the poisonous tree as “the product of the illegal
and unconstitutional Longbow [Productions]
interrogation.” (Id. 5:26- 6:24). As such,
these objections do not present new or rebuttal legal
arguments, but rather request that this Court reject Judge
reviewed the record in this case de novo, the Court
agrees with the analysis and findings of Judge Leen in her
Report and Recommendation (ECF No. 1277) denying the Motions
to Suppress and incorporates them by reference in this order.
Regarding Defendant's first objection, the Court agrees
with Judge Leen that no evidentiary hearing is necessary. A
motion to suppress requires an evidentiary hearing
“only when the moving papers allege with sufficient
definiteness, clarity, and specificity to enable the trial
court to conclude that contested issues of fact exist.”
United States v. Howell, 231 F.3d 615, 620 (9th Cir.
2000). Further, “[a] hearing will not be held on a
defendant's pre-trial motion to suppress merely because a
defendant wants one.” Id. at 621 (citation
omitted). Defendant argues that he should have been allowed
an evidentiary hearing to demonstrate that the agents filming
the Longbow Productions video “deliberately got him
drunk and then subtly coerced him by using sophisticated
psychological manipulation.” (Obj.
2:15-16). However, upon review of the Longbow
Productions video, the Court agrees with Judge Leen that
“the video belies [Defendant's] unsupported claims
[that] he was plied with alcohol by the agents or grossly
intoxicated.” (R. & R. 6:25-26). Defendant asserts
that he would testify at an evidentiary hearing as to the
“amount” and “effect” of the alcohol,
specifically that he was “too intoxicated to think
clearly” (Obj. 2:27-28, 3:18-19), but these assertions
are clearly contradicted by the video itself, in which
Defendant speaks coherently and without slurring his words
(see Video, Ex. A to Gov't Resp., ECF No. 1072).
Accordingly, the Court finds that an evidentiary hearing is
Defendant's second objection, the Court agrees with Judge
Leen that Defendant's statements in the Longbow
Productions video were voluntary. The Government bears the
burden of demonstrating voluntariness by a preponderance of
the evidence. United States v. Jenkins, 938 F.2d
934, 937 (9th Cir. 1991). A statement is voluntary “if
it is the product of a rational intellect and a free will
whether [or not] a confession is the product of physical
intimidation or psychological pressure [or] a drug-
[alcohol-] induced statement.” Medeiros v.
Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (internal
quotation marks omitted) (insertions in original). Courts
must consider the “totality of the circumstances,
” including such factors as “the degree of police
coercion; the length, location and continuity of the
interrogation; and the defendant's maturity, education,
physical condition, mental health, and age.” Brown
v. Horell, 644 F.3d 969, 979 (9th Cir. 2011).
“Ultimately, the voluntariness ‘determination
depends upon a weighing of the circumstances of pressure
against the power of resistance of the person
confessing.'” United States v. Preston,
751 F.3d 1008, 1016 (9th Cir. 2014) (quoting Dickerson v.
United States, 530 U.S. 428, 434 (2000)).
there was no police coercion, as Defendant was clearly open
and willing to share his thoughts, views, and experiences.
Additionally, despite partaking in alcoholic beverages,
Defendant spoke clearly, demonstrating his “rational
intellect and free will.” See Medeiros, 889
F.2d at 823. After considering the totality of the
circumstances, the Court finds that by providing the Longbow
Productions video, the Government sufficiently demonstrated
Defendant's voluntariness by a preponderance of the
evidence. As Judge Leen explained, “The record simply
does not support Burleson's claim that he was physically
or mentally impaired, or ‘grossly intoxicated' at
any point during the interview. [Rather, ] [t]he video
depicts a person who is eager to talk about the events”
in Bunkerville. (R. & R. 11:10-12). Accordingly, the
Court find that Defendant's statements made to Longbow
Productions were voluntary.
Defendant's third objection regarding the phone call is
moot because it necessarily requires the original interview
to have been an unconstitutional interrogation. Because
Defendant's statements to Longbow Productions were
voluntary, the January 2015 phone call with the FBI Special
Agent cannot be fruit of the poisonous tree. Further, upon
review of the phone call, it is clear that the FBI Special
Agent is returning Defendant's call, so nothing about the
phone call indicates involuntariness or coercion.
(See Phone Call Recording, Ex. B to Gov't Resp.,
ECF No. 1072).
Defendant's Objection (ECF No. 1344) is overruled. The
Court accepts and adopts Judge Leen's Report and
Recommendation (ECF No. 1277) to the extent that it is not
inconsistent with this opinion ...