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United States v. Dodge

United States District Court, D. New Mexico

October 23, 2017



         THIS MATTER comes before the Court following a hearing on October 23, 2017 upon Defendant's Motion to Compel Production of Polygraph Data and Related Documents, filed July 17, 2017 (Doc. 38). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is well-taken in part and shall be granted in part, and otherwise denied as set forth below.


         Defendant is charged with unlawfully killing John Doe on or about February 1, 2016 with malice aforethought by striking him with an axe, in violation of 18 U.S.C. §§1153 and 1111. According to the Complaint, on February 3, 2016, the partially-burned and eaten body of a man was discovered near Shiprock, New Mexico. Defendant is the victim's nephew and is purportedly the last person to see John Doe alive. The investigator's suspicions were raised when Defendant seemed to be familiar with the condition of the body, which had not been publicized.

         Defendant seeks materials related to a polygraph examination of Defendant administered by Special Agent Jennifer Sullivan (“SA Sullivan”). Defendant subsequently confessed to the crime, and Defendant seems to be alleging that this confession is involuntary because it was coerced. Defendant was interviewed on three different occasions:

(1) On February 4, 2016, Defendant was interviewed at his home by a Navajo Nation Criminal Investigator and FBI agent. Defendant was not given his Miranda rights, but he did give consent to search the items of clothing that were seized.[1]
(2) On March 17, 2016, Defendant was interviewed at the Shiprock, New Mexico Criminal Investigations office of the Navajo Nation Police Department. Deft's Ex. 1. While he was given his Miranda rights, he was not advised of his rights with a Navajo translation. Deft's Ex. 2. Defendant also gave his consent to have 4 buccal swabs taken. Deft's Ex. 4.
(3) On March 29, 2016, Defendant voluntarily came to the Shiprock Criminal Investigations office and underwent a polygraph examination conducted by SA Sullivan. He was again read his Miranda rights without a Navajo translation. Deft's Ex. 3. He also signed a Consent to an Interview with a Polygraph form that was not translated into Navajo. Deft's Ex. 5.

         The polygraph pre-test and the administration of the test was audio and video recorded, as was Defendant's post-polygraph interview which occurred after SA Sullivan told Defendant that he had failed the polygraph. Defendant ultimately admitted to getting into an altercation with John Doe on February 1, 2016 and described how he struck Doe in the neck with an axe and dragged him outside and poured kerosene on him and a blanket on which Doe was lying, setting the blanket on fire.

         Defendant argues that the requested information is material to the preparation of his defense, particularly because it is expected that the Government will attempt to introduce the confession at trial. On behalf of the defense polygraph expert, David Raskin, Ph.D., defense counsel seeks disclosure of the following:

(1) all electronic data in native format recorded by SA Sullivan during the administration of the polygraph;
(2) all polygraph examination worksheets (in handwritten and typed forms);
(3) all rough notes created by SA Sullivan pertaining to Mr. Dodge's polygraph; and
(4) the quality control report generated by SA Sullivan's supervisor and all communications and documents exchanged between SA Sullivan and her supervisor.

         The Government has agreed to make the April 4, 2016 polygraph report available to the defense, but objects to disclosure as to the other items. The Government also objects to releasing the computerized polygraph files claiming that the FBI is not able to release them under the terms of their license to use the polygraph. Exs. 7 & 9. Moreover, the Government contends that even if SA Sullivan knowingly misrepresented to Defendant that he failed the polygraph examination, that deception without more, would not render his admission involuntary. See Frazier v. Cupp,394 U.S. 731, 739 (1969) (fact that police in interrogation of defendant falsely told defendant that defendant's companion had confessed, though relevant, was insufficient to make otherwise voluntary confession by defendant inadmissible); Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. ...

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