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United States v. Begay

United States District Court, D. New Mexico

February 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LYLE WOODY BEGAY, Defendant.

          Damon P. Martinez United States Attorney Kyle T. Nayback Novaline Wilson Michael D. Murphy Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          John F. Samore Albuquerque, New Mexico Attorney for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant Lyle Woody Begay's Motion to Suppress Statement and Supportive Memorandum, filed July 22, 2014 (Doc. 28)(“Suppression Motion”); and (ii) the United States' Motion to Exclude Expert Testimony from Suppression Hearing, filed August 16, 2017 (Doc. 128)(“Exclusion Motion”). The Court held evidentiary hearings on August 17-18, 2017, and on November 20, 2017. The primary issues are: (i) whether Dr. Richard Leo, a Professor of Law and Psychology at the University of San Francisco School of Law, may offer expert testimony regarding police interrogation tactics; (ii) whether Dr. Leo may offer expert testimony regarding false confessions; (iii) whether Eric Lucero, a former New Mexico State Police officer and certified polygraph examiner, may offer expert testimony regarding polygraph examinations; (iv) whether Defendant Lyle Woody Begay's July 18, 2013, interview was a custodial interrogation; (v) whether Begay's statements during the July 18, 2013, interview were voluntary; (vi) whether Begay's July 19, 2013, interview was a custodial interrogation; (vii) whether Begay's statements during the July 19, 2013, interview were voluntary; (viii) whether Begay validly waived his Miranda[1] rights during the July 30, 2013, interview; and (ix) whether Begay's statements during the July 30, 2013, interview were voluntary. The Court concludes that: (i) Dr. Leo may testify about police interrogation tactics generally, but not about the application of such techniques to this case; (ii) Dr. Leo may not testify regarding false confessions, because the United States Court of Appeals for the Tenth Circuit has indicated that such testimony is unreliable; (iii) the Court will exclude Lucero's testimony, because it is irrelevant; (iv) Begay's July 18, 2013, interview was not a custodial interrogation; (v) Begay's statements during the July 18, 2013, interview were voluntary; (vi) Begay's July 19, 2013, interview was not a custodial interrogation; (vii) Begay's statements during the July 19, 2013, interview were voluntary; (viii) Begay validly waived his Miranda rights during the July 30, 2013, interview; and (ix) Begay's statements during the July 30, 2013, interview were voluntary. Accordingly, the Court will deny the Suppression Motion and grant in part and deny in part the Exclusion Motion.

         FACTUAL BACKGROUND

         Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d)(“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 F. App'x 705, 708 (10th Cir. 2009)(unpublished)[2](“We need not resolve whether Crawford [v. Washington, 541 U.S. 36 (2004)]'s[3] protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.'”); United States v. Ramirez, 388 F. App'x 807, 810 (10th Cir. 2010)(unpublished)(“It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.”). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M. 2011)(Browning, J.)(concluding “that Crawford v. Washington does not apply to detention hearings”).

         1. The FBI Interviews.

         1. On July 18, 2013, FBI Special Agent Matthew Schaeffer and Navajo Nation Criminal Investigator Darryl Boyd were investigating allegations that Begay had sexually abused a minor named Liberty Davis, Begay's niece. See Transcript of Recorded Interview of Lyle Woody Begay at 7:9-16 (Schaeffer, Begay); id. at 52:1-2 (Schaeffer); id. at 56:1-11 (Schaeffer, Begay)(taken July 18, 2013)(“First FBI Tr.”).

         2. On July 18, 2013, Schaeffer and Boyd knocked on the door of Begay's home in Lukachukai, Arizona. See United States' Response in Opposition to Defendant's Motion to Suppress Statement at 1, filed August 11, 2014 (Doc. 35)(“Suppression Response”); See Draft Transcript of Hearing at 164:25; 165:1 (taken August 17, 2017)(Schaeffer)(“First Hearing Tr.”).[4]

         3. Schaeffer identified himself as an FBI agent with his credentials while standing at Begay's door. See First Hearing Tr. at 164:10-17 (Schaeffer, Wilson).

         4. Schaeffer was dressed in plainclothes. See First Hearing Tr. at 164:10-17 (Schaeffer, Wilson).

         5. Schaeffer's firearm was not visible. See First Hearing Tr. at 164:10-17 (Schaeffer, Wilson).

         6. Schaeffer introduced Boyd as a tribal investigator. See Draft Transcript of Hearing at 22:2-8 (taken August 18, 2017)(Wilson, Boyd)(“Second Hearing Tr.”).

         7. Boyd's badge and firearm were visible. See Second Hearing Tr. at 22:12-14 (Boyd).

         8. Schaeffer asked Begay if he would be willing to speak to Schaeffer and Boyd, and Begay agreed to talk to Schaeffer and Boyd inside Schaeffer's Chevrolet Suburban. See Suppression Response at 1; First Hearing Tr. at 165:14-17 (Schaeffer, Wilson).

         9. Begay entered the Suburban voluntarily. See Second Hearing Tr. at 24:3-9 (Boyd).

         10. Schaeffer sat in the driver's seat of the Suburban, Boyd sat in the back seat, and Begay sat in the front passenger seat. See Suppression Response at 2; First Hearing Tr. at 165:18-25 (Schaeffer, Wilson); id. at 166:1-2 (Schaeffer, Wilson).

         11. Schaeffer closed the Suburban's doors and windows, and told Begay that he closed them to use the Suburban's air conditioner. See First Hearing Tr. at 166:13-17 (Schaeffer).

         12. The Suburban's doors were not locked. See Second Hearing Tr. at 24:11-15 (Boyd).

         13. An M-4 carbine assault rifle was mounted on a rack inside the vehicle, but at no point during Begay's interview did Schaeffer touch the M-4. See First Hearing Tr. at 167:16-24 (Schaeffer, Wilson).

         14. Begay did not see the M-4.[5] See First Hearing Tr. at 210:11-23 (Schaeffer).

         15. “[N]either SA Schaeffer nor CI Boyd brandished their weapon at any time, nor did they threaten Defendant with physical force.” Suppression Response at 8.

         16. Begay was not arrested or handcuffed during the interview. See First Hearing Tr. at 168:1-14 (Schaeffer, Wilson); Second Hearing Tr. at 24:3-9 (Boyd).

         17. Schaeffer informed Begay that he was not under arrest, that if Begay wanted to stop the interview or to not answer a question, he could do those things, and that Begay was free to leave. See First Hearing Tr. at 168:1-14 (Schaeffer, Wilson).

         18. Neither Schaeffer nor Boyd read Begay his Miranda[6] rights during the July 18, 2013 interview. See Second Hearing Tr. at 49:10-12 (Samore, Boyd).

         19. Begay confirmed that the interview was voluntary. See First FBI Tr. at 3:19 (Begay).

         20. Begay was articulate during the July 18, 2013, interview. See First Hearing Tr. at 168:24-25 (Schaeffer); Second Hearing Tr. at 25:16-17 (Boyd).

         21. At no point in the interview did Begay say that he did not understand Schaeffer's questions. See First Hearing Tr. at 169:3-5 (Wilson, Schaeffer).

         22. Begay never said that he wanted to leave the vehicle. See First Hearing Tr. at 175:15-18 (Wilson, Schaeffer).

         23. Begay never asked for an attorney during the July 18, 2013, interview. See First Hearing Tr. at 176:9-11 (Wilson, Schaeffer).

         24. During the interview, Begay admitted to or implied that he engaged in sexual acts with the alleged victim, Davis. See First FBI Tr. at 58:17-25 (Begay, Schaeffer); id. at 77:21-25 (Schaeffer, Begay); id. at 78:1-2 (Begay).

         25. The July 18, 2013, interview lasted approximately three hours. See First FBI Tr. at 3:4 (Schaeffer); id. at 135:19-20 (Schaeffer).

         26. The next day, July 19, 2013, Begay, unexpectedly and without an appointment, traveled to the FBI office in Gallup, New Mexico to speak with Schaeffer. See Suppression Response at 3; Transcript of Recorded Interview of Lyle Woody Begay at 3:1-8 (taken July 19, 2013)(Schaeffer)(“Second FBI Tr.”).

         27. Schaeffer and Begay spoke by themselves. See Second FBI Tr. at 3:4-8 (Schaeffer).

         28. Schaeffer informed Begay that “he didn't have to answer questions that he didn't want to, ” that he was not under arrest, and that Begay could end the interview and leave at any point. First Hearing Tr. at 178:23-25 (Schaeffer, Wilson); id. at 179:1-3 (Schaeffer, Wilson).

         29. Schaeffer did not read Begay his Miranda rights during the July 19, 2013 interview. See generally Second FBI Tr. (Schaeffer, Begay).

         30. Begay stated that he came to the FBI office voluntarily. See Second FBI Tr. at 3:8-10 (Schaeffer, Begay).

         31. Begay never asked to stop speaking to Schaeffer, to leave the FBI office, or to speak with an attorney. See First Hearing Tr. at 179:15-21 (Wilson, Schaeffer).

         32. Begay said he felt coerced into answering Schaeffer's questions the previous day, see Second FBI Tr. at 13:12-14 (Begay), but he also stated that he participated in the previous day's interview voluntarily, see Second FBI Tr. at 14:2 (Begay).

         33. Begay had just awakened when Schaeffer and Boyd had arrived the previous day, and “wasn't mentally prepared for those questions.” Second FBI Tr. at 52:24-25 (Begay); id. at 53:2-4 (Begay).

         34. Schaeffer asked Begay if Begay was willing to take a polygraph examination, and Begay agreed to take a polygraph. See First Hearing Tr. at 181:17-21 (Wilson, Schaeffer).

         35. Begay felt that, because of the FBI's authority, the FBI expected him to take a polygraph examination. See Second Hearing Tr. at 105:11-16 (Begay); id. at 105:8-10 (Begay).

         36. The July 19, 2013, interview lasted approximately 1.5 hours. See Second FBI Tr. at 3:3-4 (Schaeffer); id. at 71:23 (Schaeffer).

         37. On July 30, 2013, Begay returned to the Gallup FBI office to take a polygraph examination. See Suppression Response at 4; Second Hearing Tr. at 100:25 (Begay).

         38. Begay spoke with FBI Special Agent Jennifer Sullivan, who read to Begay from an FBI Consent to Interview with Polygraph form. See First Hearing Tr. at 14:20-25 (Sullivan); id. at 15:1-5 (Sullivan); Consent to Interview with Polygraph at 1 (dated July 30, 2013) (Government's Hearing Ex. 8)(“Polygraph Consent Form”).

         39. The Polygraph Consent Form states:

Before we begin an examination by means of the polygraph in connection with the fondling of Liberty Davis you must understand your rights.
YOUR RIGHTS
You have the right to refuse to take the polygraph test.
If you agree to take the polygraph test, you have the right to stop the test at anytime.
If you agree to take the polygraph test, you have the right to refuse to answer any individual question.
WAIVER AND CONSENT
I have read this statement of my rights and I understand what my rights are. I voluntarily agree to be examined by means of the polygraph during this interview. I understand and know what I am doing. No threats or promises have been used against me to obtain my consent to the use of the polygraph. I understand that the polygraph examination may be monitored or recorded. I understand that any attempt on my part to utilize polygraph countermeasures will be construed as purposeful non-cooperation. With the above understanding, I agree to submit to a polygraph examination.

Polygraph Consent Form at 1.

         40. Sullivan read to Begay the portions of the Polygraph Consent Form “all the way down to the waiver, ” and Begay read the part of the form labeled “waiver and consent.” First Hearing Tr. at 136:15-18 (Samore, Sullivan). See Polygraph Consent Form at 1.

         41. Sullivan then read to Begay the portions of the FBI's Advice of Rights form listing Begay's Miranda rights, see Advice of Rights at 1 (dated July 30, 2013)(Government's Hearing Ex. 7)(“Miranda Form”), down to the part labeled “consent, ” and Begay read the “consent” section of the form.[7] See First Hearing Tr. at 136:21-22 (Sullivan); Miranda Form at 1.

         42. The Miranda Form reads:

         YOUR RIGHTS

Before we ask you any questions, you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions.
You have the right to have a lawyer with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

         CONSENT

I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present.

Miranda Form at 1.

         43. Begay signed the Polygraph Consent Form. See Polygraph Consent Form at 1.

         44. Begay also signed the Miranda Form. See Miranda Form at 1.

         45. Begay read and understood the Miranda Form and the Polygraph Consent Form. See Second Hearing Tr. at 99:17-21 (Nayback, Begay).[8]

         46. Begay signed the forms, because he was “well within the FBI headquarters” at the time that he signed them, and felt that he “need[ed] to go along with what these guys are . . . expecting.” Second Hearing Tr. at 115:3-6 (Begay).

         47. Begay had never signed a form waiving his Miranda rights before July 30, 2013. See Second Hearing Tr. at 80:18-21 (Samore, Begay).

         48. Begay never indicated in any way that he did not want to keep speaking with Sullivan. See First Hearing Tr. at 151:1 (Sullivan).

         49. Begay never asked for a lawyer when speaking with Sullivan. See First Hearing Tr. at 30:5-11 (Sullivan).

         50. During this interview, Sullivan did not have a gun or a visible badge. See First Hearing Tr. at 12:1-3 (Sullivan).

         51. Part of Sullivan's interrogation technique is to “use charm and verbal skill and body language . . . to win over the trust of the person [she is] interviewing.” First Hearing Tr. at 104:3-6 (Samore, Sullivan).

         52. The FBI did not force Begay to take a polygraph examination, but Begay felt that he was well within the FBI office and that “in order to make [his] way back out . . . [he] need[ed] to do what's expected of [him].” Second Hearing Tr. at 106:2-14 (Begay, Nayback).

         53. Begay understood how a polygraph worked. See Second Hearing Tr. at 81:4-12 (Samore, Begay).

         54. Sullivan explained to Begay how a polygraph examination worked, but then she pushed the polygraph equipment aside, and told Begay that he did not want to take the polygraph examination, because “it picks up on the slightest bit of deception.” Second Hearing Tr. at 82:10-15 (Begay).

         55. Ultimately, “a polygraph test was not administered to Mr. Begay.” Draft Transcript of Hearing at 34:15-16 (taken November 20, 2017)(Lucero)(“Third Hearing Tr.”).

         56. Sullivan then stated that Begay's alleged crimes were “not a big deal, ” because they “happened so long ago, ” and that “maybe we can get this settled, ” with the implication that Begay should tell her what happened. Second Hearing Tr. at 84:19-25 (Begay); id. at 85:1-3 (Begay).

         57. Sullivan “was very talkative and she had almost more to say than [Begay] did, in fact anytime [Begay] had a chance to speak she would . . . stop [Begay] and . . . imply and suggest . . . whatever direction she wanted to take it.” Second Hearing Tr. at 136:9-13 (Begay).

         58. Sullivan did not yell at Begay, but she made “little outbursts here and there . . . where she was displease[d] at what [Begay] was saying.” Second Hearing Tr. at 140:6-11 (Nayback, Begay).

         59. Sullivan never made any promises of leniency or family counseling to Begay. See First Hearing Tr. at 33:8-13 (Nayback, Sullivan).[9]

         60. Begay “felt as though that if [he] didn't answer according to her that [he] wasn't going to be able to leave.” Second Hearing Tr. at 95:14-16 (Begay).

         61. Begay was articulate during the July 30, 2013, interview. See First Hearing Tr. at 148:10-16 (Sullivan, Nayback).

         62. Sullivan's interview with Begay lasted about three hours. See Second Hearing Tr. at 136:9-13 (Begay).

         63. After Sullivan's interview ended, another interview began in which Schaeffer, Sullivan, Boyd, and Begay participated, and this interview -- unlike Sullivan's interview -- was recorded. See Suppression Response at 4; Transcript of Recorded Interview of Lyle Woody Begay at 3:1-2 (taken July 30, 2013)(Schaeffer)(“Third FBI Tr.”).

         64. The recorded July 30, 2013, interview lasted approximately 1.5 hours. See Third FBI Tr. at 3:2 (Schaeffer); id. at 65:1 (Schaeffer).

         65. During the recorded interview on July 30, 2013, Begay never asked to stop answering questions, to stop talking, to speak with an attorney, or to leave. See First Hearing Tr. at 189:4-15 (Wilson, Schaeffer); Second Hearing Tr. at 32:17-24 (Wilson, Boyd).

         66. Begay was never handcuffed or arrested during this interview. See First Hearing Tr. at 189:4-15 (Wilson, Schaeffer).

         67. During the recorded portion of the July 30, 2013, interview, Begay admitted to engaging in sexual acts with Davis. See Third FBI Tr. at 11:1-8 (Begay); id. at 11:14-19 (Begay); id. at 26:20-22 (Sullivan, Begay).

         68. Begay received a GED in 2006. See Suppression Motion at 1.

         69. During the FBI interviews, Begay was approximately twenty-six years old. See Suppression Response at 11.

         2. Dr. Leo's Testimony.

         70. Dr. Leo is a Professor of Law and Psychology at the University of San Francisco School of Law. See Richard A. Leo Hamill Family Chair Professor of Law and Social Psychology and Dean's Circle Scholar at 1 (Defendant's Hearing Ex. O)(“Leo Biography”).

         71. “Dr. Leo is one of the leading experts in the world on police interrogation practices, the impact of Miranda, psychological coercion, false confessions, and the wrongful conviction of the innocent.” Leo Biography at 1.

         72. “Dr. Leo has authored more than 100 articles in leading scientific and legal journals as well as several books.” Leo Biography at 1.

         73. Dr. Leo was previously a professor at both the University of California, Irvine and the University of Colorado, Boulder. See Leo Biography at 1.

         74. Approximately thirty-five years of empirical research and dozens of peer-reviewed books exist on the topic of police interrogations. ...


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