No. 21-3565 ___________________________

United States of America

Plaintiff - Appellee

v.

Michael Joe Johnson

Defendant - Appellant ____________

Appeal from United States District Court for the District of North Dakota - Eastern ____________

Submitted: June 16, 2022 Filed: July 13, 2022 ____________ Before GRUENDER, BENTON, and GRASZ, Circuit Judges. ____________ GRUENDER, Circuit Judge.

After a jury trial, Michael Joe Johnson was convicted of sexually abusing an incapacitated individual in violation of 18 U.S.C. § 2242(2)(B). Johnson appeals, challenging the district court’s1 denial of his motion to suppress certain statements

1 The Honorable Peter D. Welte, Chief Judge, United States District Court for the District of North Dakota. made to law enforcement and the sufficiency of the evidence supporting his conviction. We affirm.

I.

On May 6, 2019, J.W.S. reported to law enforcement that Johnson, her half- brother, had performed a sex act on her the previous day while she was asleep at his home after a night of drinking. J.W.S. explained that she awoke as Johnson was completing the sex act.

Later that day, Bureau of Indian Affairs Agents Raymond Cavanaugh and Randy Vivier went to Johnson’s home and knocked on the door. Johnson opened the door, and the agents said that “[they] needed to talk with him about allegations” against him. The agents “asked if he would come out with [them] and talk.” Johnson agreed and accompanied the agents to their vehicle. Agent Cavanaugh sat in the driver’s seat, Johnson sat in the front passenger seat, and Agent Vivier sat in the back. At no point did the agents place Johnson in handcuffs or otherwise physically restrain him.

Once inside the vehicle, the agents informed Johnson that his half-sister had reported that he had sexually assaulted her. Johnson denied the allegation. He explained that J.W.S. and a friend had visited Johnson’s home the night before the alleged assault and that J.W.S. had been drinking. Eventually, the friend left, but J.W.S. remained and slept in one of the home’s bedrooms. According to Johnson, “he was never around” J.W.S. after she went to bed. Johnson specifically denied having sex with J.W.S.

The agents then asked Johnson if he had any questions for them. Johnson indicated that he did not. Johnson opened the passenger-side door, which had remained unlocked throughout the interview, and exited the vehicle. Before the agents left, they requested a DNA sample, and Johnson agreed to provide one.

-2- The agents sent Johnson’s DNA sample as well as vaginal swabs collected from J.W.S. to a crime lab for testing. The vaginal swabs tested positive for the presence of semen, and the DNA in the semen matched the DNA in Johnson’s sample.

After receiving the DNA test results, Agents Cavanaugh and Vivier asked Johnson for a follow-up interview. Johnson agreed. Again, the interview took place in the agents’ vehicle, with Agent Cavanaugh in the driver’s seat, Johnson in the front passenger seat, and Agent Vivier in the back. The agents did not place Johnson in handcuffs or otherwise physically restrain him. The vehicle’s doors and windows remained unlocked, and at one point Johnson rolled down the passenger-side window.

The agents informed Johnson about the DNA test results. Johnson acted “surprised” and “denied that . . . it could be him.” Once again, the agents gave Johnson an oppo