United States v. George Thunderhawk
2015 U.S. App. LEXIS 15123
| 8th Cir. | 2015Background
- Victim V.R.B. reported that in 2008, at age 8–9, she awoke to someone touching her vaginal area through clothing and later saw George Thunderhawk in the house.
- FBI Special Agent O’Neil interviewed V.R.B.; shortly after, O’Neil and a BIA agent asked Thunderhawk to speak. Thunderhawk voluntarily entered O’Neil’s car and was interviewed for ~20 minutes, initially denying then admitting some contact. O’Neil later recorded a 5-minute summary with permission.
- One month later Thunderhawk agreed to a voluntary polygraph, was given Miranda warnings in writing at the station, underwent the test, and gave a recorded interview admitting touching V.R.B. for 30–60 seconds.
- Thunderhawk moved to suppress statements from the first interview as involuntary because O’Neil said Thunderhawk would not be arrested at the end of the interview and because the recorder was turned on late. The district court denied suppression; Thunderhawk appealed the involuntariness ruling.
- A jury convicted Thunderhawk under 18 U.S.C. § 2244(a)(5); he appealed denial of suppression, a jury instruction on inferences, denial of mistrials for two closing-argument remarks, and three sentencing determinations (acceptance-of-responsibility, restitution, and substantive reasonableness). The Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voluntariness / Suppression of first interview statements | O’Neil’s assurance he would not arrest Thunderhawk at interview end and delayed recording coerced confession; statements therefore involuntary | Statements were voluntary; assurance was truthful in context and not coercive; no police overbearing conduct | Affirmed: no coercive police activity; confession voluntary under Due Process (Connelly standard) |
| Late recording / Seibert concern | Delaying tape to record summary parallels Seibert tactic of deferring Miranda to elicit confession | Thunderhawk was not in custody then (Miranda not required); he consented to recording; Seibert inapplicable | Affirmed: Seibert inapplicable where noncustodial and no Miranda circumvention |
| Jury instruction on drawing inferences | Instruction risked creating mandatory presumption relieving govt burden to prove intent | Instruction was boilerplate permitting reasonable inferences from evidence; did not single out any inference | Affirmed: instruction permissible; no unconstitutional mandatory presumption (Francis distinction) |
| Closing argument & burden shift | Govt argued conviction could rest on any one disjunctive intent and said defendant offered no real defense, shifting burden | Govt properly noted statutory disjunctive element and legitimately attacked weakness of intoxication defense; court instructed jury on burden and counsel not evidence | Affirmed: (1) argument about alternative intents proper given statute; (2) no prejudicial burden-shifting given curative instructions |
| Sentencing: acceptance of responsibility | Thunderhawk: admitted conduct and only disputed legal mens rea due to intoxication, so deserved §3E1.1 reduction | Court: by denying factual guilt at trial and forcing govt to prove elements, he was not entitled to reduction | Affirmed: denial of reduction reasonable; intoxication defense unlike rare cases meriting reduction |
| Sentencing: restitution (Apprendi claim) | Thunderhawk: restitution is punitive and increases penalty beyond statutory maximum, so must be jury-decided beyond reasonable doubt | Govt/PSR: restitution is civil remedy incorporated into criminal proceedings; Apprendi inapplicable | Affirmed: Apprendi does not bar judicial fact-finding for restitution (controlling circuit precedent) |
| Sentencing: substantive reasonableness | Thunderhawk sought downward variance | Court weighed §3553(a) factors, victim impact, minimal history, letters; imposed bottom-of-guidelines 41 months | Affirmed: within discretion and not substantively unreasonable |
Key Cases Cited
- Colorado v. Connelly, 479 U.S. 157 (coercive police activity required to render confession involuntary under Due Process)
- Missouri v. Seibert, 542 U.S. 600 (invalidating Mirandized-after-confession technique designed to circumvent Miranda)
- United States v. LeBrun, 363 F.3d 715 (8th Cir.) (test for whether police overbore defendant’s will)
- Francis v. Franklin, 471 U.S. 307 (presumption/instruction constitutional limits)
- United States v. Urkevich, 408 F.3d 1031 (8th Cir.) (proof of conjunctively phrased indictment satisfied by proof of any disjunctive statutory alternative)
- United States v. Carruth, 418 F.3d 900 (8th Cir.) (Apprendi does not bar judicial restitution fact‑finding)
- Southern Union Co. v. United States, 567 U.S. 343 (distinguishing criminal fines; Court did not overrule restitution jurisprudence relied on by circuit)