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United States v. Coriz

United States District Court, D. New Mexico

September 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRONE CORIZ, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant Tyrone Coriz's Motion to Suppress Statement (ECF No. 31). The Court held hearings on the motion on June 14, 2018 and August 21, 2018. Defendant asserts that his statement must be suppressed because he invoked his Fifth Amendment right to remain silent and terminate the interrogation, yet Special Agent Jennifer Sullivan failed to honor his rights. Defendant additionally contends that his statement must be suppressed because the Government cannot meet its burden to show his confession was voluntary because Special Agent Sullivan misrepresented material facts, promised treatment in lieu of incarceration, threatened him, and ignored his attempts to end the questioning and make a phone call, resulting in psychological coercion that overbore his will. The Court, having considered the motion, briefs, evidence, argument, and otherwise being fully advised, concludes that the motion to suppress must be granted on the grounds that Special Agent Sullivan violated Defendant Coriz's Fifth Amendment right to end the interrogation when she failed to scrupulously honor Defendant Coriz's unequivocal right to remain silent, and the resulting confession, based on the totality of the circumstances, was not voluntary.

         I. FACTUAL FINDINGS

         For the purposes of the motion before the Court, the Court finds the facts as follows:

         At the time of the interview in question, Tyrone Coriz (“Coriz” or “Defendant”) was a 45-year old man who completed the 11th grade and was previously a tribal official whose duties included assistant to the war chief with San Felipe Pueblo. See June 14, 2018 Hr'g Tr. 12:25-13:11 & 26:7-14; compare Gov.'s Hr'g Ex. 9, with Def.'s Mot. 15, ECF No. 31.

         In 2002, a Bureau of Indian Affairs (“BIA”) agent investigated Mr. Coriz regarding an allegation of sexual assault, and after giving a couple of statements, Mr. Coriz said he did not want to participate in the interview further. See June 14, 2018 Hr'g Tr. 11:10-12:19. Special Agent Bourgeois investigated another allegation of sexual assault in 2006 against Coriz. See June 14, 2018 Hr'g Tr. 12:23-17:9. Special Agent Bourgeois interviewed Coriz after his arrest and read him an FD-395 Advice of Rights form, which Mr. Coriz appeared to understand. Id. 14:7-15:6. Coriz spoke to Special Agent Bourgeois, but then discontinued the interview by saying he no longer wished to talk. See Id. 15:14-17:9. Accordingly, Coriz was familiar and understood his Miranda rights based on his prior experience with the criminal justice system.

         BIA Agent James Jojola (“Jojola”) conducted an investigation of Coriz regarding new allegations against Coriz of sexual assault, and arranged a date for Coriz to come to the Federal Bureau of Investigations (“FBI”) office in Albuquerque to undergo a polygraph test. See June 14, 2018 Hr'g Tr. 22:23-23:25; Gov.'s Hr'g Ex. 1. On May 24, 2016, Coriz came to the Albuquerque FBI office voluntarily on or around 9:00 a.m. after getting a ride with his girlfriend See June 14, 2018 Hr'g Tr. 23:10-24:21, 35:13-15; Gov.'s Hr'g Ex. 6 (Consent to Interview Form). Special Agent Jennifer Sullivan (“Sullivan”) conducted the test. June 14, 2018 Hr'g Tr. 22:18-20. Sullivan met Coriz and Jojola in the lobby and walked them back to the polygraph room where she gave Coriz an overview of what they were going to do that day. See June 14, 2018 Hr'g Tr. 23:24-24:7.

         Jojola left, and then Sullivan discussed with Coriz a consent form to give her written permission to take the polygraph and a second form advising him of his Miranda rights. Id. 24:6-25:7. Coriz signed the “Consent to Interview with Polygraph” form at 9:19 a.m. and the “Advice of Rights” form at 9:29 a.m. prior to the test. Id. 25:12-17; Gov.'s Hr'g Ex. 5 & 6. Sullivan then asked personal history information of Coriz. June 14, 2018 Hr'g Tr. 25:20-26:4. She explained the questions she was going to ask to ensure he understood the vocabulary she would use, the testing equipment and devices she would use, and what the polygraph test monitors and records. Id. 29:2-30:4, 31:23-32:12. Sullivan then placed Coriz in a chair and put the equipment on him, re-explaining as she went what each piece of equipment did. See Id. 32:13-15. The pre-test took about 90 minutes. See Id. 83:16-85:8.

         Sullivan was trained in and used the FBI MGQT polygraph test, a variant of the federally approved Air Force MGQT. See Id. 21:25-22:3, 156:11-21. The FBI MGQT test is designed to be more conservative to increase the likelihood that an innocent person may be deemed inconclusive in order to minimize the likelihood of a guilty person passing the test. Id. 157:7-24; August 21, 2018 Hr'g Tr. 15:15-16:13.

         Sullivan went over each of the eight questions on the test: two relevant questions, two control questions, three irrelevant questions, and a sacrifice relevant question. Id. 32:24-33:4. Sullivan asked two relevant questions during the testing: “In the last year did you ever touch [Jane Doe's] vagina?” and “In the last year did you ever touch [Jane Doe's] vagina inside Albert's house?” Id. 30:22-31:14; Gov.'s Hr'g Ex. 7 (Polygraph Examination Report) at 4 of 4. The questions Sullivan used met the standards of the polygraph profession. See June 14, 2018 Hr'g Tr. 161:8-162:12, 164:23-165:13; August 21, 2018 Hr'g Tr. 33:16-23.

         During the polygraph test, Sullivan conducted three separate charts using the exact same questions moved around in different ways. See June 14, 2018 Hr'g Tr. 31:15-22. The polygraph test, including the three charts and practice test, took approximately 30-35 minutes. See Id. 33:11-14. Sullivan began Chart 1 at about 11:02 a.m. and finished Chart 3, ending the polygraph test, at about 11:14 a.m. See Id. 85:7-8, 98:7-17.

         Sullivan scored the test after each chart. See Id. 96:6-9. The cardiovascular reading in Coriz's polygraph chart revealed that he had premature ventricular contractions (“PVCs”) during the test, which are defects in the heart rhythm, and it is best practice not to consider the cardio measure on a polygraph chart when PVCs are present. See Id. 66:22-68:8, 69:20-74:19, 186:17-21, 187:24-188:17; August 21, 2018 Hr'g Tr. 24:16-26:1. Sullivan scored the cardiovascular reading, despite the presence of PVCs, and scored the test as deception indicated. Compare June 14, 2018 Hr'g Tr. 69:20-74:19, 93:25-94:5, with Def.'s Ex. A, C-E. Numeric scoring of Coriz's charts would not result in accurate results in light of the presence of PVCs and “messy, ” poor quality physiological data. See June 14, 2018 Hr'g Tr. 178:17-179:7, 180:7-15, 186:14-16; August 21, 2018 Hr'g Tr. 23:11-18. Numerical analysis is preferred when possible, and FBI policy is typically not to use a global analysis, which is a subjective test that is not scientifically valid. See June 14, 2018 Hr'g Tr. 186:8-13; August 21, 2018 Hr'g Tr. 22:23-23:6. If Sullivan's cardio scores were not factored into her analysis, the numeric score from her results using her scoring method would have resulted in an inconclusive score. See August 21, 2018 Hr'g Tr. 37:10-38:16, 48:14-18. See also Def.'s Ex. N ¶ 23 (“Had SA Sullivan followed current Federal scoring practices and not scored the PVC recoveries as responses her outcome, then even with the biased FBI decision practices the Coriz Examination would have resulted in an inconclusive outcome.”). Accordingly, Sullivan's conclusion of deception indicated was inaccurate using her numeric scoring system; a more accurate conclusion from her results and scoring method should have been inconclusive. Compare June 14, 2018 Hr'g Tr. 94:18-94:23, with August 21, 2018 Hr'g Tr. 37:10-38:16. Even with an inconclusive test result, FBI procedure is to conduct a post-test interview. See June 14, 2018 Hr'g Tr. 94:24-95:11, 160:15-161:2, 194:6-14.

         Despite the polygraph test results being inconclusive under her scoring method, at the end of the test, Sullivan got up and told Coriz that he failed the test, so she took off the equipment and started the post-test interview. June 14, 2018 Hr'g Tr. 33:23-34:12, 104:12-17. Sullivan video and audio recorded only the post-polygraph interview. June 14, 2018 Hr'g Tr. 35:25-36:12; Gov.'s Hr'g Ex. 1 (Video Recording (“Video”)) & Hr'g Ex. 2 (Enhanced Audio Recording (“Enhanced Audio”)). Coriz had water and Sullivan offered him food during the test. Video 1:23-2:10[1]; Gov.'s Ex. 4 (“Interview Tr.”) at 2. Sullivan confronted Coriz with the results of the polygraph, telling Coriz he failed the test, he was not even close, and the polygraph says what is inside his body. See Video 1:23-4:55; Interview Tr. 2:6-4:6.

         At 12:40 running time, when Sullivan was asking Coriz about a report involving allegations against him, Coriz said that he does not want to talk anymore. See Video 12:40-12:46. Sullivan asked why they would make it up. Id. 12:46-12:50. Sullivan continued to interrogate Coriz. See Id. 12:50-13:49.

         At 13:49 running time, Coriz said, “I don't want to argue no more. If they really want me that bad and they want to throw away the key at me, fine.” Video 13:49-13:54. Sullivan responded, “Are you telling me that when James or the BIA or whoever…” Id. 13:54-58. Upon review of the Video and Enhanced Audio, the Court finds that the audio is not inaudible and that Coriz interrupted her and said: “I have nothing more to say.” Id. 13:58-14:01. Sullivan replied, “OK.” Id. 14:01-14:02. Coriz continued talking, saying, that he knows in his heart he is telling the truth. See Id. 14:02-14:13. Sullivan stated, “You realize it's not going away. I mean, you get that, right.” Id. 14:13-14:16. Coriz said that is fine, if they want him gone that bad, my own family, and he continued to talk. See Id. 14:17-15:09. The interview resumed with Sullivan responding and asking more questions. See Id. 15:09-17:49.

         Sullivan had Coriz read a paragraph in one of the reports of prior incidents, which he did aloud, and she asked why she would make it up. Id. at 17:49-18:40. Upon review of the Video and Enhanced Audio, the Court finds that the audio is not inaudible and that Coriz said, “I don't need to say anymore.” Video at 18:46. Sullivan replied, “All right.” Video 18:46. She tossed the report down on the floor, and continued, “Just so you know, it's not going away.” Id. 18:46-18:48. Coriz responded, “Yeah. But.” Id. 18:50. Sullivan then said, “That's the thing. So once the community learns that you failed the polygraph test, they probably are not going to be that impressed with what's going on.” Id. at 18:47-18:58. Defendant said that's their opinion. Id. at 18:58-19:01. Sullivan replied the “BIA is going to have to really continue enforcing their investigation.” Id. at 19:03-19:08. Coriz responded, “Well, that's fine” and said something else inaudible. See Id. at 19:08-19:13. Sullivan said, “Well, here's the deal. You came here to clear your name and your name is not cleared. That's what I'm telling you.” Id. at 19:12-19:16. Coriz started to say something and Sullivan continued, “Well, let me talk. So I don't have to ask you any questions. You don't have to talk. If you're done talking, quit talking. That's fine.” Id. 19:16-19:26. Sullivan understood that Coriz had expressed his desire not to talk to her anymore.

         She then discussed how there were seven people saying this. See Id. 19:26-19:37. Coriz said that he wanted to see the victim's polygraph results. Id. 19:54-:56. Sullivan asked why he should see her polygraph, stating that she would not look at his. See Id. at 19:27-20:12. Sullivan then stated: “It doesn't really matter because, remember, you're done with this. You don't have anything more to say. You don't know why you failed the polygraph. You got nothing to say.” Id. 20:12-20:20.

         Sullivan then discussed his problem is when the victim gets on the stand and the other witnesses get on the stand. See Id. at 20:20-20:59. She then talked about his new family, how he had his own daughter, that if this was a sickness or behavior he can't help, then he needed to prove to these people that he wanted help. See Id. at 20:59-22:59. Sullivan warned that Jojola is going to sit down with his wife and tell her about all the victims in the past, unless he has a problem and wanted to fix it, then that is a different story. See Id. at 22:57-23:30. She stated that she is going to get Jojola, tell him he failed, and it can go one of two ways - he can continue to deny it or he can take responsibility, get help, cooperate, and try to stay out of prison, if he can. See Id. at 23:33-23:59.

         She then said it's a pattern and discussed how people get help, get therapy and counseling, that there are resources and programs for getting help. See Id. at 24:15-29:59. Coriz remained silent after Sullivan told him to let her talk, and he began re-engaging in the conversation at 29:19 in the Video. See Id. Sullivan continued to urge him to get help by admitting to his shortcomings, and Coriz began responding to Sullivan's questions. See Id. 29:19-47:17.

         At around 48:16 into the recording, the Court finds that Coriz said, “I just want to talk to my girlfriend.” Compare Id. 48:16-23, with Enhanced Audio 48:16-23. In response, Sullivan stated: “Here's the only thing I have to say about that … I understand why you need to call Rolanna. I get it.” Id. 48:14-48:40. Coriz responded that he wanted to talk to her, but Sullivan replied that once he walks out of here, she can't help him, she can't defend him, and she can't sit next to him. See Id. 48:40-48:52. He again expressed wanting to call her, Sullivan responded that he is just going to worry ...


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