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United States v. Thunderhawk

United States Court of Appeals, Eighth Circuit

August 27, 2015

United States of America, Plaintiff - Appellee
v.
George Thunderhawk, Defendant - Appellant

Submitted June 12, 2015

Page 1204

Appeal from United States District Court for the District of North Dakota - Bismarck.

For United States of America, Plaintiff - Appellee: Gary Lee Delorme, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Bismarck, ND.

For George Thunderhawk, Defendant - Appellant: Paul Henry Myerchin, Bormann & Myerchin, Bismarck, ND.

George Thunderhawk, Defendant - Appellant, Pro se, Ayer, MA.

Before LOKEN, BYE, and KELLY, Circuit Judges.

OPINION

Page 1205

LOKEN, Circuit Judge.

A jury convicted George Thunderhawk of abusive sexual contact of a child under 12 years of age in violation of 18 U.S.C. § 2244(a)(5). The district court[1] sentenced him to 41 months in prison. Thunderhawk appeals, arguing the court erred in not suppressing his allegedly involuntary confessions, in instructing the jurors to draw reasonable inferences from their experience and common sense, in denying two motions for mistrial based on improper closing arguments, and in committing three sentencing errors. We affirm.

I. Suppression Issues

In 2013, FBI Special Agent Ryan O'Neil interviewed V.R.B., the reported victim of child abuse. V.R.B. told him tat one night in 2008, when she was eight or nine years old and living with her mother, she awakened when someone lay down in bed behind her, reached around, and touched her vaginal area through her clothes for one to two minutes. V.R.B. pretended to remain asleep, but got up after the person left and saw Thunderhawk, who was socially involved with her mother, sitting on the couch in her living room. After this interview, O'Neil and BIA Special Agent Lawrence knocked on the door of Thunderhawk's home in Cannonball, North Dakota, and asked if they could speak with him regarding an allegation. Thunderhawk agreed to talk, and the agents waited in their car. Ten minutes later, Thunderhawk came out and entered the front passenger seat of O'Neil's vehicle.

The agents informed Thunderhawk they wanted to ask him a few questions, he could end the interview and leave at any time, he was not under arrest, and he would not be arrested at the end of the interview regardless of what he told them. The agents interviewed Thunderhawk for approximately twenty minutes. He initially denied the allegations, suggesting someone else may have assaulted V.R.B. O'Neil said he thought Thunderhawk was lying. Thunderhawk eventually admitted getting into bed with the victim, telling O'Neil he had been drinking heavily at that point in his life. O'Neil asked if he could turn on his recorder and summarize the interview. Thunderhawk agreed. In a five-minute taped statement, O'Neil reviewed the interview and gave Thunderhawk an opportunity to ...


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