United States District Court, D. Nebraska
ORDER AND FINDINGS AND RECOMMENDATION
Michael D. Nelson United States Magistrate Judge.
matter is before the Court on the Motion to Sever (Filing
No. 50) and Motion to Suppress (Filing No. 48)
filed by Defendant Charles Neil Parker
(“Charles”); and the Motion to Sever (Filing
No. 53) and Motion to Suppress (Filing No. 55)
filed by Defendant Krista Parker (“Krista”).
Defendants filed briefs in support of the Motions to Sever
(Filing No. 51; Filing No. 54) and Motions
to Suppress (Filing No. 49; Filing No. 56).
The government filed briefs in opposition to the Motions to
Sever (Filing No. 61) and Motions to Suppress
(Filing No. 62).
Court held an evidentiary hearing on the motions on February
21, 2019. Charles was present with his attorney, Mark W.
Bubak, and Krista was present with her attorney, David
Stickman. The government was represented by Assistant United
States Attorney, Kelli Ceraolo. Omaha Nation police officers,
Jeremy Gilpin and Benjamin Carrillo, testified on behalf of
the government. The Court received into evidence, without
objection, Exhibits 101-102 offered by Krista, Exhibit 103
offered by Charles, and Exhibit 1 offered by the government.
A transcript (TR.) of the hearing was prepared and filed on
February 23, 2019. (Filing No. 69). This matter is
now fully submitted to the Court. For the following reasons,
the undersigned magistrate judge denies Defendants'
motions to sever, without prejudice, and recommends that
Defendants' motions to suppress be denied.
are each charged in a three-count Indictment with kidnapping,
felony child abuse/neglect, and false imprisonment involving
a minor Indian child, C.H., during the period of January 1,
2018, to September 15, 2018, within the exterior boundaries
of the Omaha Nation Indian Reservation in the District of
Nebraska. (Filing No. 24).
Gilpin, a police officer with the Omaha Nation Law
Enforcement Services, testified that he was on duty on
September 15, 2018, when he received a report from a Cheyanne
Freemont at approximately 2:00 a.m. regarding her observation
of a young male child locked in a room in the basement while
at a party at Krista and Charles' house where everyone
had been drinking. (TR. 14-16). Ms. Freemont stated that the
basement door was locked from the outside and that when she
opened the door an alarm went off. After she saw the child
and heard the alarm she became panicked and scared and shut
the door so the alarm would go off. Ms. Freemont told Officer
Gilpin that there was nothing in the room except concrete
floor and a blanket. According to Officer Gilpin, Ms.
Freemont was crying and very upset because she recognized the
child from one of her classes at the Omaha Nation School.
(TR. 16-17). Ms. Freemont stated that the child had a
disability and she was concerned about neglect because she
knew the school had made prior reports to the child abuse
hotline regarding this child. (TR. 41, 45).
on Ms. Freemont's report, Officer Gilpin, Sergeant
Benjamin Carrillo, and Officer Simmonds went to Krista and
Charles' residence at approximately 2:20 a.m. to do a
welfare check. When the officers arrived at the residence,
they saw multiple vehicles and an intoxicated couple standing
outside the garage, which was open. The couple stated there
were no children at the residence. (TR. 18, 46). Officer
Gilpin testified that he knocked on the front door to the
residence and someone opened it from the inside and let him
in. Officer Gilpin observed multiple people in the living
room and kitchen area, alcoholic beverages on table counters
and floor, and a person that appeared to be passed out on the
couch. (TR. 19-20). Sergeant Carrillo knocked on the door to
the residence from the garage, but the individuals inside did
not open the door for him. (TR. 30). The woman standing
outside the garage when officers arrived then helped Sergeant
Carrillo gain access to the residence from the garage. (TR.
entering the residence, Sergeant Carrillo began looking for
the child and located him in a dark basement utility room
that had no carpet or drywall and had a bad
“porta-potty” odor. The door to the room was
locked and had an alarm. (TR. 48-49, 59). Sergeant Carrillo
testified that the child was clothed and did not look
physically injured but was crying and smelled like urine. The
child also stated he was hungry. (TR. 54-56, 59-60, 63).
Sergeant Carrillo took the child out of the room and sat him
down on some furniture in the basement while Sergeant
Carrillo checked the basement bedrooms and advised the other
officers he located the child. Sergeant Carrillo asked the
other officers to start giving everyone breathalyzers and to
take intoxicated individuals into protective
custody. (TR. 20-21, 50). Sergeant Carrillo stayed
inside the residence with the child to wait for child and
family services to arrive while the other officers removed
the adults from the residence. (TR. 50-51). After all adults
were removed from the residence, Sergeant Carrillo and
housing security officers closed and locked windows and doors
to secure the residence. (TR. 62-63). Child and family
services arrived at the police department instead of the
residence, so Sergeant Carrillo took the child from the
residence to the police department to meet them. (TR. 51-52).
Krista was taken into protective custody. (TR. 21).
the officers left the residence, Lieutenant Bertucci asked
Officers Gilpin and Simmonds to return to the residence to
secure it for a search warrant and advised them that Charles
“was back up at the residence.” (TR. 22-23). When
Officers Gilpin and Simmonds returned to the residence,
Officer Simmonds saw movement inside the kitchen, but no one
answered the front door. Officer Gilpin went to the back of
the residence and knocked on the window and shined his
flashlight at Ronnie Miller, Jr. and Tim Grant, whom Officer
Gilpin recognized and knew did not live there. (TR. 23).
Ronnie opened the sliding glass back door for Officer Gilpin,
who reentered the residence to see if anyone else was inside
and to verify if Charles was there. (TR. 24). Four
individuals, none of them Charles, were removed from the
residence. (TR. 37-38, 42). Officer Gilpin called FBI Agent
Steve Friend for direction, and Agent Friend advised Officer
Gilpin to take photographs of the residence since Gilpin was
already inside; Officer Simmonds then took pictures inside
the residence. (TR. 24-25, 35). No. search warrant for the
residence was ever obtained. (TR. 30-31). Both defendants
have now moved for separate trials and to suppress any
evidence obtained from the warrantless entries into
their home and any subsequent statements they
government asserts that the Defendants are properly joined
for trial and that both warrantless entries into
Defendants' residence were lawful under exigent
circumstances and the community caretaking function of the
officers, and that all evidence and statements obtained as a
result are admissible.
MOTIONS TO SEVER
Defendants move for severance under Federal Rule of Criminal
Procedure 14. While “[t]here is a preference in the
federal system for joint trials of defendants who are
indicted together, ” Zafiro v. United States,
506 U.S. 534, 537 (1993), Fed. R. Crim. P. 14(a) provides
that if joinder “appears to prejudice a defendant or
the government, the court may order separate trials of
counts, sever the defendants' trials, or provide any
other relief that justice requires.” Fed. R. Crim. P.
14(a). Properly joined defendants should be severed under
Rule 14 “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro,
506 U.S. at 539. The defendant seeking severance carries a
heavy burden and “must show ‘real prejudice,'
that is, ‘something more than the mere fact that he
would have had a better chance for acquittal had he been
tried separately.” United States v. Mickelson,
378 F.3d 810, 817 (8th Cir. 2004))(quoting
United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir.
defendant challenges joinder under Fed. R. Crim. P. 8(b).
Instead, they argue a joint trial would be prejudicial under
Fed. R. Crim. P. 14. Krista argues that a joint trial would
violate her Sixth Amendment right to confront witnesses
against her based on her inability to confront or
cross-examine Charles regarding his statements that C.H. is
occasionally locked in the basement storage room to protect
their daughters and to allow him to “calm down”
to avoid lashing out; that C.H. is normally is locked in
storage for “a few hours or so;” that
“there may have been a time that [C.H.] might have been
there for a night;” and that the storage room door is
locked when C.H. is confined. See Exhibit 102. Likewise,
Charles argues that he would be prejudiced should any of
Krista's statements be introduced during a joint trial
without being provided an opportunity to cross-examine her.
The government argues that ...