No. 22-2969 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jade LaRoche

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota - Central ____________

Submitted: June 16, 2023 Filed: October 4, 2023 ____________ Before LOKEN, ERICKSON, and KOBES, Circuit Judges. ____________ LOKEN, Circuit Judge.

Around 2:30 a.m. on October 31, 2021, Jade LaRoche’s mother, Josephine Skunk, called local dispatch and said an officer needed to come by because her son was “acting up.” Bureau of Indian Affairs Officer Justin Schmiedt was dispatched to Skunk’s home, learning on the way that LaRoche had an active tribal arrest warrant. Ms. Skunk invited Schmiedt into the living room and told LaRoche to join them. After a short conversation, Schmiedt told LaRoche he was “going to have to take you because you got that warrant.” LaRoche fled to the garage, pursued by Schmiedt, where LaRoche knocked Schmiedt down and escaped.

A grand jury indictment charged LaRoche with forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer and inflicting bodily injury in violation of 18 U.S.C. § 111(a)(1) and (b). After a two day trial, the jury acquitted LaRoche of that charge but convicted him of the lesser included offense of forcible assault of a federal officer involving physical contact in violation of § 111(a)(1). The district court1 sentenced LaRoche to 44 months imprisonment. He appeals, raising numerous evidentiary issues and challenging the assessment of a two-level sentencing increase because Schmiedt “sustained bodily injury.” See USSG § 2A2.4(b)(2). We affirm.

I. Evidentiary Issues

A. Denial of LaRoche’s Motion to Suppress. LaRoche timely moved to suppress the statements he made when Officer Schmiedt came to his mother’s house knowing there was an outstanding warrant for LaRoche’s arrest, arguing the statements were made during custodial interrogation without the warnings required by Miranda v. Arizona, 384 U.S. 436, 444 (1966). After an evidentiary hearing at which Schmiedt testified at length, the record was supplemented with a dash cam audio recording of Schmiedt’s colloquy with LaRoche in the home. In a lengthy Report and Recommendation, Magistrate Judge Mark Moreno recommended that the motion be denied, concluding that LaRoche was not in custody for purposes of Miranda, that “none of Schmiedt’s inquiries amounted to impermissible interrogation,” and that the statements were not involuntary. The district court in a

1 The Honorable Roberto A. Lange, Chief Judge of the United States District Court for the District of South Dakota.

-2- five-page Opinion and Order overruled LaRoche’s objections, adopted the Report and Recommendation, and denied the motion to suppress. On appeal, LaRoche argues he was in custody, he was subjected to interrogation, and his statements were not voluntary. We review the legal issues of custody, interrogation, and voluntariness de novo, and any underlying factual findings for clear error. See United States v. Sanchez-Velasco, 956 F.3d 576, 579 (8th Cir. 2020) (custody and interrogation); United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc) (voluntariness), cert. denied, 543 U.S. 1145 (2005).

1. Custody. An individual is in custody if there is “restraint on freedom of movement of the degree associat