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United States v. Parker

United States District Court, D. Nebraska

March 25, 2019



          Michael D. Nelson United States Magistrate Judge.

         This 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).

         The 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.


         Defendants 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).

         Jeremy 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[1] 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).

         Based 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. 46-47).

         After 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.[2] (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).

         After 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[3] obtained from the warrantless entries into their home and any subsequent statements they made.[4]

         The 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.



         Both 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. 1993)).

         Neither 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 ...

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