United States District Court, E.D. Missouri, Eastern Division
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on Defendant's pretrial motions. All pretrial motions were referred to United States Magistrate Judge Frederick R. Buckles under 28 U.S.C. § 636(b). Defendant Sandra Kay Bryant (f/k/a Sandra Kay Kemper) was indicted by the grand jury on a two-count indictment. Count I charged Defendant and co-Defendant Steven Henry Kemper ("Kemper") with Aiding and Abetting the Use of Fire to Commit Mail Fraud, in violation of 18 U.S.C. § 844(h). Count II, which has been dismissed on motion of the United States, had charged Defendant Bryant with Use of Fire to Commit Mail Fraud, in violation of 18 U.S.C. § 844(h).
Defendant filed a motion to dismiss the indictment on limitations, jurisdictional and other grounds (Doc. No. 43), and a motion to suppress statements (Doc. No. 44). By stipulation of the parties, the motions were considered and decided upon the written Appendix (Doc. No. 55) and Joint Supplemental Appendix (Doc. No. 60) submitted by the parties, without testimony or oral argument. The Appendices consist of documents related to the investigation, deposition and pre-trial hearing testimony, and depositions and trial testimony from a prior state court proceeding arising out of these same events. The Magistrate Judge issued a Memorandum, Report and Recommendation (R&R) denying the motion to dismiss (Doc. No. 79), and an R&R denying the motion to suppress statements (Doc. No. 80). Defendant filed objections to the R&Rs. For the reasons set forth below, Defendant's objections will be denied, and the R&Rs of the Magistrate Judge will be adopted and incorporated herein.
MOTION TO DISMISS
Count I of the indictment alleges that Defendant and her then husband, Kemper, aided and abetted in a scheme to commit mail fraud that involved the intentional setting and use of fire to destroy several residences for the purpose of fraudulently obtaining insurance proceeds. The indictment alleges that as part of the scheme, Kemper intentionally set fire to his mother's residence at 9780 Dennis Drive in St. Louis County in 1997, and that both Defendants benefitted from the insurance proceeds; and that both Defendants planned and set fire to Kemper's mother's subsequent residence at 2101 State Street in Alton, Illinois in 1999, and benefitted from the insurance proceeds. These acts are alleged to have been part of an overall scheme by which both Defendants ultimately committed the offense charged in Count I of aiding and abetting the intentional use of fire at the residence at 6682 Champana Lane, in Florissant, Missouri, in 2001, for the purpose of committing mail fraud. Defendant's son, Zachary, died in the fire.
Defendant Bryant filed a Motion to Dismiss Alleged Unlawful Acts and Offenses Against Defendant Which Occurred Beyond the Statute of Limitations and Jurisdiction of the Court. (Doc. No. 43) In her motion, Defendant alleges that the Government's evidence of intent as to the fire at Dennis Drive shows that Kemper acted alone without notice to Bryant, and that the Government therefore cannot show Defendant had the requisite intent. As such, Defendant requests that the charge in Count I relating to mail fraud related to Dennis Drive should be dismissed. She further contends that the charges in Count I related to both the Dennis Drive and State Street fires should be dismissed because the mailings alleged to have occurred regarding those properties occurred outside the relevant statute of limitations period. Finally, she asserts that the Court lacks jurisdiction over the charge in Count I regarding State Street, as the property was located outside the Eastern District of Missouri. In his R&R, the Magistrate Judge recommended that each of these grounds be denied. Defendant filed a one-sentence objection, restating and reasserting all legal arguments set forth in her Motion to Dismiss (Doc. No. 90.), without any further specification or basis.
When a party objects to a Report and Recommendation concerning a motion to dismiss or to suppress in a criminal case, the court is required to "make a de novo review determination of those portions of the record or specified proposed findings to which objection is made.'" United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)).
The Court conducted a de novo review of the Motion to Dismiss. Based on that review, the undersigned concludes that the Magistrate Judge made proper factual findings and correctly analyzed the issues. At the outset, the Court agrees with the Magistrate Judge that Defendant's contention that the government cannot prove intent with respect to this Defendant regarding the first fire is not properly raised at this stage. Where, as here, the indictment contains a facially sufficient allegation, Defendant cannot challenge the sufficiency of the Government's evidence pretrial.
The main fallacy in this and Defendant's other arguments, however, is that they fail to recognize that the events regarding the fires at Dennis Drive and State Street are simply background related to the overall scheme. As such, the facts related to Dennis Drive need not allege the elements of a separately charged offense. For similar reasons, Count I is not barred by limitations. The indictment alleges the use of the mails on or after November 16, 2001, and therefore within the limitations period. That acts related to the overall scheme, namely the fires at Dennis Drive and State Street, occurred outside the ten year period prior to the indictment does not change the analysis. Nor does the fact that one of the events related to the overall scheme occurred outside this district, namely the State Street fire, affect this Court's jurisdiction where, as here, the events charged related to Champana Lane occurred within this District.
Accordingly, the reasons set forth more fully in the R&R, the motion to dismiss shall be denied.
MOTION TO SUPPRESS
Defendant also moved to suppress the statements she made on March 21, 2002, asserting that she was in custody at the time her statements were made; that she was not advised of her Miranda rights; that she did not voluntarily waive her Miranda rights; and that her statements were not voluntary, but rather were the result of coercion, intimidation and deception. The Magistrate Judge reviewed the record submitted by the parties, and in a twenty-eight page R&R denied the motion. Defendant filed objections to the R&R (Doc. No. 89), and those objections were supplemented (Doc. No. 108) after defense counsel was granted leaved to withdraw and new counsel was appointed to represent Defendant. In the objections, Defendant, in the main, does not quarrel with the underlying facts recited in the R&R, but rather asserts that several facts material to the analysis were omitted, and contends that these facts warrant a conclusion that Defendant's statements were not voluntary.
The Court has also carefully reviewed the evidence in the Appendices, including a review of the video of the polygraph examination, and the testimony contained in the Supplemental Appendix. Based on the Court's de novo review of the evidence, the Court finds that the R&R (Doc. No. 80) correctly states the facts pertinent to Defendant's motion to suppress, and properly applies the law. Accordingly, the Court adopts and incorporates the Conclusions of Law and the detailed Findings of Fact in the R&R, (Doc. No. 80, at 2-15), and supplements those findings as follows:
The Court agrees with the Magistrate Judge that Defendant was not in custody during her initial interview with Detectives Webb and O'Neill. She voluntarily accompanied the officers to the station, and was not restrained while being transported or in the interview room in any way. The questioning at that time did not focus on any particular individual, and at the time, the officers did not believe Defendant was involved in setting the fire. The Opinion from the Missouri Supreme Court attached as an exhibit to Defendant's objections does cause the Court to conclude otherwise. The state court began its opinion with the sentence: "About four months after her son was killed in a November 2001 fire at the family's home, Sandra Kemper was taken into police custody and interrogated." (Doc. 89, Ex. A.) The opinion of the state court is not binding on this Court. Moreover, the opening sentence is, at best, non-binding dicta. The issue of the voluntariness of Defendant's ...