United States of America v. Jade LaRoche

United States Court of Appeals
For the Eighth Circuit
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No. 22-2969
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jade LaRoche
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Central
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Submitted: June 16, 2023
Filed: October 4, 2023
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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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

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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
1The Honorable Roberto A. Lange, Chief Judge of the United States District
Court for the District of South Dakota.
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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 associated with a formal arrest.” California v. Beheler, 463
U.S. 1121, 1125 (1983) (quotation omitted). This is an objective inquiry that turns
on how a reasonable person in the suspect’s position would have understood the
situation. Stansbury v. California, 511 U.S. 318, 323-24 (1994). The district court
concluded that LaRoche was not in custody during his fifteen-minute conversation
with Schmiedt that preceded LaRoche’s flight:
Judge Moreno credited the testimony of Schmiedt who stated that he
only asked LaRoche questions regarding the status of his warrant to
build a rapport with LaRoche who plainly did not wish to go into
custody. Schmiedt’s questions [were intended] to assess the situation
the officer faced. . . .
This Court also agrees with Judge Moreno’s conclusion that the
conversation between LaRoche and Schmiedt was: (1) relatively brief,
amicable, and one LaRoche steered; (2) took place in a familiar and
relaxed setting and in the company of LaRoche’s mother; (3) did not
involve any display of weapons, physical force, or heavy-handed tactics
on the part of Schmiedt; (4) went on without restraint to LaRoche’s
freedom of movement; and (5) ended when LaRoche ran off to his
bedroom. The mere fact that Schmiedt may have been standing between
LaRoche and the front door does not mean that LaRoche was in custody.
Indeed, Schmiedt’s purpose in conversing with LaRoche seems to have
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been to get LaRoche to submit himself to custody peacefully, while
LaRoche’s purpose in the conversation appears to have been to try to
talk Schmiedt out of taking him into custody.
After review of Schmiedt’s hearing testimony and the dash cam audio
transcript, we agree. LaRoche argues, citing United States v. Boucher, 909 F.2d
1170, 1174 (8th Cir. 1990), that the interaction was custodial because Schmiedt
“announced” the arrest early on by saying “let’s take care of [the warrant].” But the
relevant question is “how a reasonable person in the suspect’s position would have
understood the situation.” Id. (quotation omitted). Here, the amicable conversation --
dominated by LaRoche -- occurred in his mother’s home, a non-custodial atmosphere.
Schmiedt testified he did not know what the warrant was based on. LaRoche fled
only after Schmiedt later told him he would be arrested, confirming that LaRoche
initially believed or at least hoped that he could avoid immediate arrest.
2. Interrogation. Interrogation occurs when an officer “should know” that his
statements “are reasonably likely to elicit an incriminating response.” Rhode Island
v. Innis, 446 U.S. 291, 301 (1980). This issue “focuses primarily upon the
perceptions of the suspect, rather than the intent of the police.” Id. LaRoche argues
that the conversation became interrogation when Schmiedt asked, “[s]o what’s the
warrant for? Do you know what it’s for?” But prior to that question, LaRoche had
acknowledged the warrant and vaguely described that it involved dealings with BIA
Officer Moran. We agree with Magistrate Judge Moreno: “Given their context, [the
questions] were designed to help [Schmiedt] assess the situation he faced and clarify
LaRoche’s earlier statements.” Schmiedt knew nothing about the outstanding warrant
when he arrived. Even if LaRoche was in custody, follow-up questions to clarify
ambiguity do not amount to “interrogation” unless “their point is to enhance the
defendant’s guilt.” United States v. Becerra, 958 F.3d 725, 729 (8th Cir. 2020)
(quotation omitted); see United States v. Jackson, 852 F.3d 764, 771-72 (8th Cir.
2017); United States v. Orr, 636 F.3d 944, 954 (8th Cir. 2011). Far from seeking to
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expand LaRoche’s guilt, the follow-up questions gave LaRoche an opportunity to
provide an explanation that might avoid the need for an immediate arrest.
3. Voluntariness. LaRoche argues his statements were involuntary because
Officer Moran had previously declined to make a warrant arrest and this “implied
promise” that he would not be arrested meant his will was overborne when faced by
a uniformed officer who suspected he was under the influence. This contention is
without merit. That an officer had given LaRoche an opportunity to resolve the
warrant without an arrest was not a promise that would bind a different officer weeks
later. Moreover, “a promise made by law enforcement not to arrest or prosecute does
not render a confession involuntary.” United States v. Thunderhawk, 799 F.3d 1203,
1206 (8th Cir. 2015). Rather, the issue is “whether or not the authorities overbore the
defendant’s will and critically impaired his capacity for self-determination.” LeBrun,
363 F.3d at 725. Here, we agree with Magistrate Judge Moreno and the district court
that LaRoche’s statements were voluntary.
For these reasons, we conclude the district court did not err in denying
LaRoche’s motion to suppress. Therefore, we need not consider whether the alleged
error was harmless, which is at least arguable because the statements in question “had
no bearing on his guilt for the crime” of which he was convicted, his subsequent
assault of a federal officer. United States v. Figueroa-Serrano, 971 F.3d 806, 813 (8th
Cir. 2020).
B. Sufficiency of the Evidence. The district court instructed the jury that to
find LaRoche guilty of the physical-contact lesser included offense, it had to find that
LaRoche (1) voluntarily and intentionally (2) assaulted, resisted, opposed, impeded,
intimidated, or interfered with federal officer Schmiedt and (3) made physical contact
with Schmiedt while (4) Schmiedt was employed as a Bureau of Indian Affairs police
officer. LaRoche argues there was insufficient evidence to convict him of this
offense because there was “no physical evidence of the charged events, nor was there
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corroborating evidence of actual physical contact. At best, there was frantic video
captured from the taser that showed in at least one frame that LaRoche was close to
Officer Schmiedt.” We will affirm if, “after viewing the evidence in the light most
favorable to the verdict, a reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” United States v. Wilkins, 25 F.4th 596, 598–99 (8th Cir.
2022) (quotation omitted).
Schmiedt, his treating chiropractor Brooke Schomp, and LaRoche were the
witnesses who addressed this issue at trial. Schmiedt testified that after he told
LaRoche he would execute the arrest warrant, LaRoche turned and fled into the
garage, where there was a backdoor exit. Schmiedt chased LaRoche into the garage,
where LaRoche emerged from behind a blanket and ran directly into Schmiedt,
knocking him into a wall and table. Schmiedt unsuccessfully tried to tase LaRoche,
who escaped through the front door. Dr. Schomp testified to treating Schmiedt for
right shoulder, neck, and pelvic pain and injury after the incident. LaRoche,
testifying in his defense, testified that he “cut out” and went to the garage because he
did not want to be arrested and Schmiedt came into the garage with his laser lights
looking for LaRoche. He denied assaulting or having physical contact with Officer
Schmiedt. The prosecution introduced a hazy video from the taser camera. It did not
establish whether or not there was physical contact.
Lack of physical evidence does not warrant overturning LaRoche’s conviction.
“Even in the face of inconsistent evidence, a victim’s testimony alone can be
sufficient to support a guilty verdict.” United States v. Seibel, 712 F.3d 1229, 1237
(8th Cir. 2013) (quotation omitted). Schmiedt testified there was painful contact that
required medical treatment and time off from work, testimony corroborated by Dr.
Schomp. LaRoche argues Schmiedt exaggerated, emphasizing that the jury acquitted
him of assault that inflicted bodily injury. But “it is the function of the jury, not an
appellate court, to resolve conflicts in testimony or judge the credibility of witnesses.”
United States v. Hernandez, 569 F.3d 893, 897 (8th Cir. 2009) (quotation omitted).
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As in Wilkins, “the jury faced competing accounts of the events” and chose to credit
Schmiedt’s testimony, which provided sufficient proof of the alleged contact. 25
F.4th at 599-600. “The jury’s credibility findings are virtually unreviewable on
appeal.” United States v. Henderson, 11 F.4th 713, 716 (8th Cir. 2021) (quotation
omitted), cert. denied, 142 S. Ct. 1696 (2022). The district court did not err in
denying LaRoche’s motions for judgment of acquittal.
C. Rule 404(b) Issues. Prior to trial, the district court ruled on LaRoche’s
motion in limine to preclude the government from introducing his prior convictions
under Rules 404(b) and 403 of the Federal Rules of Evidence. The court excluded
other prior convictions, including an assault that did not involve a federal officer, but
ruled that the government may introduce, with a limiting instruction, the fact of four
prior convictions for assaulting law enforcement officers -- 2009 and 2019 federal
convictions for assaulting, resisting, or otherwise impeding federal officers, and 2011
and 2012 South Dakota convictions for resisting arrest and assault on a law
enforcement officer. It appears, the court explained, that “the trial here will be
focused on what Mr. LaRoche’s intent was and whether it was simply to flee or also
to flee in a way that involved physical contact with the officer. And thus, evidence
of his intent, absence of mistake, or . . . lack of accident is central here.” LaRoche
challenges this ruling on appeal.
Rule 404(b) precludes the use of prior crimes to show the defendant’s
propensity to commit a criminal act. But prior convictions are admissible to prove
“intent . . . absence of mistake, or lack of accident” if the evidence is “(1) relevant to
a material issue; (2) similar in kind and not overly remote in time to the crime
charged; (3) supported by sufficient evidence; and (4) higher in probative value than
prejudicial effect.” United States v. Bragg, 44 F.4th 1067, 1073-74 (8th Cir. 2022)
(citation omitted), cert. denied, 143 S. Ct. 1062 (2023). We review the district court’s
admission of 404(b) evidence for abuse of discretion, reversing only if prior
convictions “clearly had no bearing on the case and were introduced solely to prove
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the defendant’s propensity to commit criminal acts.” United States v. Drew, 9 F.4th
718, 722 (8th Cir. 2021) (quotation omitted), cert. denied, 142 S. Ct. 1159 (2022).
We conclude the district court did not abuse its discretion in admitting the fact
of four prior convictions for nearly identical criminal conduct -- assault of a state or
federal officer engaged in performing law enforcement responsibilities. “Evidence
of past crimes can be probative of a defendant’s intent to commit a similar act.”
United States v. Johnson, 860 F.3d 1133, 1142 (8th Cir. 2017) (quotation omitted).
By pleading not guilty, LaRoche required the government to prove every element of
the charged crime, including intent.2 The oldest of the four convictions took place
twelve years before the charged conduct, within the time span of prior convictions
we have generally allowed. See United States v. Escobar, 909 F.3d 228, 242 (8th Cir.
2018). The district court limited the government to introducing the certificates of
conviction, which is sufficient evidence of the conviction, and the court’s limiting
instruction diminished the danger of unfair prejudice. See United States v. Walker,
470 F.3d 1271, 1275 (8th Cir. 2006). LaRoche argues admitting four convictions was
unnecessarily cumulative, but we have upheld “admit[ting] four past convictions for
non-propensity reasons when paired with a limiting instruction.” Drew, 9 F.4th at
724. We afford the district court “substantial deference” in making this
determination. Bragg, 44 F.4th at 1074.
D. Other Evidentiary Issues. LaRoche argues that a number of the district
court’s other evidentiary rulings were prejudicial abuses of discretion -- not
sufficiently redacting segments of the dash cam audio where LaRoche made
references to his time in prison or criminal history; testimony by Schmiedt that
implied LaRoche was under the influence of a stimulant like methamphetamine; the
2“The mere fact that [LaRoche] did not actively dispute motive or intent did
not preclude the government from offering otherwise admissible evidence of these
factors.” United States v. Walker, 428 F.3d 1165, 1170 (8th Cir. 2005).
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government cross-examining LaRoche on his encounter with Officer Moran that led
to the outstanding warrant, a subject LaRoche introduced in his opening statement
and addressed in his direct examination testimony; and the contention that “Schmiedt
repeatedly attempted to exceed or violate the district court’s orders and discussions
regarding his interactions with LaRoche.” The government argues that some of these
issues should be subject only to plain error review.
“A district court is accorded wide discretion in determining the admissibility
of evidence under the Federal Rules.” United States v. Abel, 469 U.S. 45, 54 (1984).
We reverse “only when an improper evidentiary ruling affected the defendant’s
substantial rights or had more than a slight influence on the verdict.” United States
v. Espinoza, 684 F.3d 766, 778 (8th Cir. 2012) (quotation omitted). Here, as in Abel,
the district court carefully considered arguments of counsel, sustained defense
objections or limited testimony in some instances, and made efforts to ensure that
probative evidence did not unduly prejudice LaRoche. He argues that these
evidentiary rulings were nonetheless unfairly prejudicial under Rule 403 of the
Federal Rules of Evidence. “In determining whether evidence should have been
excluded under Rule 403, a reviewing court must give great deference to the trial
judge who saw and heard the evidence.” United States v. Ziesman, 409 F.3d 941, 951
(8th Cir. 2005) (quotation omitted). After careful review of the record, we conclude
there was no abuse of the district court’s substantial evidentiary discretion.
II. The Sentencing Issue
The guideline for Obstructing or Impeding Officers offenses, which includes
18 U.S.C. § 111 violations, is Section 2A2.4. One of its Specific Offense
Characteristics is a two-level increase in the base offense level “[i]f the victim
sustained bodily injury.” USSG § 2A2.4(b)(2). “Bodily injury” is defined as “any
significant injury; e.g., an injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought.” USSG § 1B1.1, comment. (n.1B). On
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appeal, LaRoche argues the district court committed procedural error in overruling
his objection to this enhancement because no bodily injury occurred. “We review the
factual bases of a district court’s sentencing enhancements for clear error, and give
due deference to the district court’s application of the Guidelines to the facts.”
United States v. Hoelzer, 183 F.3d 880, 882 (8th Cir. 1999). However, our review
of the application of the Guidelines is de novo. United States v. Brooks-Davis, 984
F.3d 695, 700 (8th Cir. 2021).
At trial, Schmiedt testified he felt pain in his back and lower side upon hitting
the wall. The injury slowed him down and made him unable to effectively pursue the
fleeing LaRoche. When he completed this shift, his shoulder, neck, and back were
still hurting. He did not feel fit for duty the next day and saw a chiropractor, Dr.
Schomp, who advised Schmiedt to take a week off work. Dr. Schomp testified she
performed orthopedic tests that confirmed pain and injury in Schmiedt’s right
shoulder, neck and pelvic region. Dr. Schomp treated Schmiedt on four different
occasions in the first half of November.
LaRoche argues that the jury, by acquitting him of the greater offense of
assaulting, opposing, resisting, impeding, intimidating, or interfering with a federal
officer “by inflicting bodily injury,” impliedly found Schmiedt not credible in
testifying he had an injury, and the district court could not overrule this credibility
finding by applying the “sustained bodily injury” sentencing enhancement. We
disagree. “[A]n acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct has been proved by
a preponderance of the evidence.” United States v. Ruelas-Carbajal, 933 F.3d 928,
930 (8th Cir. 2019) (quotation omitted).
“[A] victim need not manifest outward signs of injury to sustain bodily injury.”
Hoelzer, 183 F.3d at 882. Here, the district court did not clearly err in finding by a
preponderance of the evidence that Schmiedt suffered bodily injury. Both Schmiedt
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and Dr. Schomp testified the injury that resulted when LaRoche pushed Schmiedt into
a wall was painful, drove Schmiedt to see a chiropractor who confirmed the pain and
injury, and prompted Schmiedt to take a week off work. We have upheld a finding
of sustained bodily injury on less compelling evidence. See United States v. Steele,
550 F.3d 693, 704 (8th Cir. 2008) (scratches near eye that prompted officer to seek
medical attention). Though LaRoche points to contrary evidence, such as Schmiedt
participating in a four-hour pheasant hunt while off work, it does not convince us the
district court erred, much less clearly erred. The credibility of Schmiedt and Dr.
Schomp were for the trial court to determine. See United States v. Buford, 42 F.4th
872, 876-77 (8th Cir. 2022).
LaRoche further argues that applying the two-level increase violated his Fifth
and Sixth Amendment rights in light of the jury’s acquittal of the inflicting bodily
injury charge. This argument is foreclosed by our controlling precedents. See, e.g.,
United States v. Sanchez, 42 F.4th 970, 976 (8th Cir. 2022), cert. denied, 143 S. Ct.
2691 (2023).
The judgment of the district court is affirmed.
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