United States District Court, D. Arizona
NEIL V. WAKE, District Judge.
Before the court is Defendant Calvert Les Woody's Motion to Suppress Statements. (Doc. 98.) Woody seeks to exclude incriminating statements made before and after an FBI polygraph examination concerning sexual abuse of two juvenile victims. Expert testimony suggests that, as a result of low average intelligence and cultural differences, Woody may lack the psychological fortitude necessary to withstand potentially coercive interrogation techniques. In this context, determining whether Woody confessed voluntarily requires more than simply a summary of the words he uttered; other contextual factors, such as tone of voice, the precise questions asked, and the techniques used to elicit an admission, are also critical. And yet, the only evidence the Government offers to prove voluntariness is the largely conclusory testimony of the FBI officer who interrogated Woody. While such testimony might usually suffice, it does not carry the Government's burden of persuasion in this case, where there is other credible evidence indicating Woody's will may have been overborne.
The Government could have avoided placing the court in this position had it recorded Woody's confession. But although it permits recording of all other suspect interviews in Indian country, FBI policy forbids recording polygraph examinations. As a result, the court lacks neutral evidence of what transpired during Woody's interview, the FBI's interrogation techniques, Woody's comprehension and emotional state, and the words he spoke and that were spoken to him. The Government's conscious choice not to preserve crucial evidence has thwarted the court's analysis of whether Woody's statements were voluntary. This choice does not lighten the Government's burden of persuasion. The evidence the Government does present must be evaluated in light of the evidence it chooses to make unavailable. Considering both, as well as Woody's expert psychological testimony, the court is not persuaded by a preponderance of the evidence that Woody's statements were voluntary. The Motion will be granted.
A. Initial Investigation
In December 2011, the Navajo Nation Police informed the Federal Bureau of Investigation of child sexual abuse allegations against Woody. The FBI referred the six-year-old victim, Adriana, to the Flagstaff Medical Center for a forensic interview. One month later, on January 20, 2012, the FBI arranged another forensic interview for ten-year-old Sylvia, who had also accused Woody of sexual abuse. Based on those interviews, the FBI undertook to locate Woody. Agents eventually obtained a telephone number for Woody's girlfriend, Valerie Dale, and through her scheduled a meeting with Woody in the parking lot of a Window Rock, Arizona, Shop n Save.
Present at that meeting on June 26, 2012, were Woody, Dale, and their three-month-old son, as well as Special Agents Cheryn Priestino and Matthew Shelley of the FBI. Woody voluntarily came to the Shop n Save. This meeting lasted about forty minutes, during which Woody stood outside of his vehicle, in control of the keys to his car. He made no incriminating statements. Special Agent Priestino explained that she had reached out to Woody to inform him of the investigation and seek his cooperation.
Later in the conversation, Special Agent Priestino inquired whether Woody would submit to a polygraph examination. When Woody asked what a polygraph exam was, Dale told him it was equivalent to a lie-detector test. Special Agent Priestino explained that the test usually takes two to three hours, that it involves attaching electrodes and other equipment to the subject's body, and that the determination of truthfulness hinges on the answers to a handful of questions. Woody said he would think about Special Agent Priestino's request, and Dale indicated she would contact the FBI if Woody wished to sit for an exam.
B. Polygraph Examination and Statements
Several weeks later Special Agent Priestino called Dale to follow up. Woody agreed to appear at the FBI's Gallup, New Mexico, field office for a polygraph exam on December 20, 2012. After Dale dropped Woody off that morning, Special Agent Priestino met him in the lobby of the Gallup office and escorted him to a windowless but well-lit conference room. Waiting for Woody in the conference room was Special Agent Brian Fuller, a supervisory regional polygraph manager for the FBI. Special Agent Fuller reviews for accuracy any polygraph exam administered by any FBI agent in the western United States. He also administers polygraph exams himself. Over the course of his eighteen-year FBI career, he estimated that he has conducted approximately 1, 100 polygraph tests; of that number, roughly 300 involved investigations into crimes in Indian country. About half of the people he examines, both Native American and non-Native American, give a confession.
Except where specifically noted, what follows is Special Agent Fuller's account of what transpired, taken solely from his notes, his later report, and his testimony at a March 5, 2015 evidentiary hearing. Special Agent Fuller gave Woody an overview of the polygraph process, during which Special Agent Priestino was present. Throughout, both agents were dressed in plainclothes and had their weapons and badges concealed. Special Agent Fuller asked Woody whether he was willing to take the exam, whether he could read and write, whether he spoke any languages other than English, and how far he had gone in school. After recording Woody's answers, Special Agent Fuller, sitting at the conference room table, opened an electronic "Advice of Rights" form on his laptop and turned the computer to face Woody, who was seated in a chair against the wall, next to the conference room door. Under a heading that reads "Your Rights, " the form contains a list of the following six statements: 1) "You have the right to remain silent, " 2) "Anything you say can be used against you in court, " 3) "You have the right to talk to a lawyer for advice before we ask you any questions, " 4) "You have the right to have a lawyer with you during questioning, " 5) "If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish, " 6) "If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time." (Ex. 4.)
Special Agent Fuller read each of these statements aloud to Woody. He also read out the following disclaimer, located in the "Consent" portion of the form: "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." ( Id. ) Woody then signed the form without asking any questions or expressing any confusion about his rights. ( See id. )
Special Agent Fuller repeated the process with a second form, entitled "Consent to Interview with Polygraph." (Ex. 5.) Among the statements on this form that Special Agent Fuller read to Woody were the following: 1) "You have the right to refuse to take the polygraph test, " 2) "If you agree to take the polygraph test, you have the right to stop the test at anytime, " and 3) "If you agree to take the polygraph test, you have the right to refuse to answer any individual question." ( Id. ) The form contains a "Waiver and Consent" section, which reads, in part, "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." ( Id. ) Special Agent Fuller testified that Woody did not convey any misapprehension or ask any questions about this form before signing it. The copy of this form admitted into evidence shows the signatures of Woody and both agents. ( See id. )
At this point, Special Agent Priestino left the room and closed the door behind her, leaving Woody alone with Special Agent Fuller, who began what he termed a "pre-test interview." In that interview, Special Agent Fuller gathered biographical information about Woody such as his date of birth, height and weight, education and employment history, and criminal record, which he recorded in a "Polygraph Examination Worksheet." (Ex. 14.) He explained that the polygraph test would include questions about whether Woody had had inappropriate sexual contact with the victims, as well as other questions. Through a series of questions about intoxication and sleep the previous night, Special Agent Fuller determined that Woody was eligible to take a polygraph exam that day.
The conversation then moved to the allegations against Woody. According to a "Polygraph Examination Report" authored by Special Agent Fuller on January 8, 2013, during this portion of the December 20, 2012 pre-test interview Woody made a number of statements that he apparently thought were exculpatory but that are more likely inculpatory. Woody told Special Agent Fuller he had been at Adriana's mother's trailer in Tsaile, Arizona, for a family get-together. (Ex. 13 at 1-2.) While "play fighting" with Adriana on the floor, Woody grabbed Adriana under her armpits and "playful[ly]" touched her breasts. ( Id. at 2.) He also allegedly "touched Adriana's vaginal area over her clothes with his hand, " but denied touching her vagina underneath her clothes. ( Id. at 2-3.) Woody placed Adriana on his lap but moved her back to the floor after she began "moving around on his penis." ( Id. at 2.) Because the zipper on the shorts Woody wore that day was not working, his penis fell out of his shorts while he was wresting with Adriana. ( Id. at 3.) Woody "could not remember if Adriana touched his penis or if she tried to put it in her mouth when they were wrestling." ( Id. ) Later in the interview, however, Woody claimed Adriana had touched his penis but that he had not placed it in her mouth. ( Id. ) Woody described all these events as an accident and a "misunderstanding." ( Id. )
Woody recounted a similar series of events with respect to Sylvia. During "playful wrestling around" with Sylvia, Woody "touched her vaginal area" over her clothes, but Sylvia never saw or touched his penis. ( Id. ) On a separate occasion, in the course of throwing Sylvia on a trampoline, Woody touched Sylvia's vagina and breasts. ( Id. ) Woody changed his story later in the interview, telling Special Agent Fuller that Sylvia touched Woody's penis when it accidentally fell out of his shorts. ( Id. )
After Woody made these statements, Special Agent Fuller invited Woody to move to the polygraph exam chair, which was at the conference room table. He discussed with Woody the difference between telling the truth and telling a lie and analogized the polygraph to an X-ray machine that monitors the test-taker's physical reactions for signs of dishonesty. Special Agent Fuller explained to Woody how the polygraph exam works, including how the various pieces of equipment measure a subject's physiological response to questioning. To show Woody how the polygraph would operate, Special Agent Fuller administered a practice test for which he asked Woody to give knowingly false answers. Special Agent Fuller then administered the test itself. Out of eight total questions, Special Agent Fuller asked two "relevant questions": "Did you put your finger in Adriana's vagina?" and "Did you put your finger in Adriana's vagina that day?" ( Id. ) Woody answered "no" to both. ( Id. ) Special Agent Fuller then removed the polygraph equipment from Woody and informed him he had not "passed" the test.
When asked what was bothering him, Woody told Special Agent Fuller that during his "play wrestling" with Adriana, he had accidentally slipped the tip of his middle finger into her vagina. Special Agent Fuller asked Woody whether he would be willing to draw a diagram indicating how far his finger had gone into Adriana's vagina. Woody agreed and traced his hand on a sheet of paper, drawing a line across the tip of his middle finger. Above the diagram, Woody signed his name to the following statement: "This is how far I think my middle finger went in her vagina on accident." (Ex. 6.)
Special Agent Fuller left to retrieve Special Agent Priestino. Both agents testified that Special Agent Fuller walked Woody through a summary of the statements he had made during the pre- and post-test interviews, stopping periodically to confirm that Woody acknowledged making those statements. Woody did not object to any of Special Agent Fuller's characterizations. In Special Agent Priestino's presence, Woody admitted to drawing the diagram that depicted how far his finger had penetrated Adriana "on accident."
Following this debriefing, Woody requested a ride to a McDonald's on the east side of town, where his car was stuck. Special Agent Fuller, along with Special Agent Priestino and one other agent, drove Woody across town ...