United States v. Begay (310 F. Supp. 3d 1318, 2018)

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

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 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 Fed.Appx. 705, 708 (10th Cir. 2009) (unpublished) ("We need not resolve whether Crawford [v. Washington, 541 U.S. 36 (2004) ]'s[ ] 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 Fed.Appx. 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.").

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. 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 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. 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).

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).

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. See Second Hearing Tr. at 176:19-25 (Leo).

75. "[N]obody in the social sciences disputes that [the study of police interrogations] is a valid and recognized area of empirical social science." Second Hearing Tr. at 190:16-18 (Leo).

76. "There are five or six empirical methods that social scientists use" to study interrogation tactics. Second Hearing Tr. at 191:13-14 (Leo). These methods include field research, observational research, laboratory experiments, analysis of documents or archival research, interviews, and survey studies. See Second Hearing Tr. at 191:14-24 (Leo).

77. In using these methods, Dr. Leo explained that "we gather data, we form hypotheses, gather data, go out and get that data, write it up, [and] submit it for peer review." Second Hearing Tr. at 192:5-7 (Leo).

78. "[T]here has been peer review, there has been training, there has been substantial research and publication going back many years" on the study of police interrogation tactics. See Second Hearing Tr. at 192:14-16 (Leo).

79. The study of police interrogations is generally accepted in the social scientific community. See Second Hearing Tr. at 177:15 (Leo).

80. Dr. Leo has published dozens of peer-reviewed articles, several books, and has "been researching and writing in this area longer than almost anyone else." Second Hearing Tr. at 178:1-5 (Leo).

81. Regarding the application of police interrogation techniques to this case, Dr. Leo's methodology involves listening to interrogation recordings, studying the transcripts,

identifying which techniques were used, and what I think about those techniques in light of the issues that the attorney directs me to. If there is a fully recorded interrogation, then it's all there. I'm just really applying my expert knowledge in evaluating the research techniques and the risks that may have been created, or anything else that somebody with expert knowledge would see and be concerned about one way or the other.

Second Hearing Tr. at 210:7-15 (Leo). If the interrogation was not recorded, Dr. Leo's methodology involves interviewing those present at the interrogation. See Second Hearing Tr. at 210:16-25 (Leo).

82. Dr. Leo has testified as an expert witness approximately 300 times over the past twenty years. See Second Hearing Tr. at 179:15 (Leo).

83. The police interrogation process is not designed for innocent people; rather "it's designed for guilty people to move them from denial to admission." Second Hearing Tr. at 187:17-20 (Leo).

84. Police officers "are taught and trained to make a judgment that somebody is guilty [of the] crime before they interrogate ... and that the goal of the interrogation is to get a confession." Second Hearing Tr. at 192:5-10 (Leo).

85. Police officers are often taught various techniques to get a confession, including, first, "to convince the suspect he or she is caught; the evidence establishes their guilt ... [and] there is no way [out]," Second Hearing Tr. at 195:4-6 (Leo), and, second, to induce "a suspect to think that it's to their advantage, to their benefit, whether for moral or psychological or legal or other reasons to confess," Second Hearing Tr. at 195:9-12 (Leo).

86. Another interrogation technique is to minimize a confession's consequences or to magnify the consequences of refusing to confess. See Second Hearing Tr. at 194:4-9 (Leo).

87. Sullivan's unrecorded July 30, 2013, interview with Begay "was a guilty presumptive interrogation." Second Hearing Tr. at 215:1-2 (Leo).

88. Begay's July 30, 2013, interview was not a polygraph pre-test, but, rather, was an interrogation. See Second Hearing Tr. at 216:17-19 (Leo).

89. "[I]nterrogators are trained when somebody says they don't remember a crime, don't tell them they remember. That increases the risk [of] false confessions." Second Hearing Tr. at 232:15-17 (Leo).

90. Regarding the frequency of false confessions,

We cannot say how frequently [false confessions] occur, because there is no database maintained by the government or a private organization that makes all police interrogations available to us, from which we could do a random sample and then come up with an error rate or, you know, a false confession rate.

Second Hearing Tr. at 223:17-23 (Leo)(alteration added).

91. Although social scientists have documented hundreds of false confessions, "[w]hen we document a proven false confession, it's very hard to prove the negative. You'd have to show it was physically impossible for somebody to commit a crime ... or you have to show that no crime occurred." Second Hearing Tr. at 224:1-6 (Leo).

92. "[T]here are lots of confessions where there is an allegation that it's false, and we can't prove it one way or another. So when I say we prove-we have hundreds of proven false confessions, these have to be the tip of the iceberg, because oftentimes you just don't know." Second Hearing Tr. at 224:16-21 (Leo).

93. "There is a type of false confession where the person admits to something despite having no memory." Second Hearing Tr. at 232:18-22 (Leo).

94. A sign of this kind of false confession is conditional or subjunctive language where the suspect says "I could have done this, I probably did this. I would have done that, I might have done the other." Second Hearing Tr. at 232:24-25 (Leo); id. at 233:1 (Leo).

3. Eric Lucero's Testimony.

95. Eric Lucero is a former New Mexico State Police officer and a certified polygraph examiner. See Resume at 1 (Defendant's Hearing Ex. U).

96. Lucero attended the Backster School of Lie Detection, where he received polygraph training. See Third Hearing Tr. at 6:8-11 (Lucero).

97. Lucero has testified in New Mexico state courts fifty-seven times, see Third Hearing Tr. at 11:4-5 (Lucero), and in federal courts three times, see Third Hearing Tr. at 10:23-24 (Lucero).

98. In a polygraph pre-test, the examiner establishes that the examinee is suitable for a polygraph, which involves determining the examinee's education level, health, and the presence or absence of psychological disorders, see Third Hearing Tr. at 19:13-18 (Lucero), explains to the examinee how a polygraph works, and ensures that the examinee knows about the allegations against him, see Third Hearing Tr. at 25:3-7 (Lucero).

99. A polygraph pre-test interview usually takes twenty or thirty minutes, and in Lucero's opinion, a three-hour pre-test interview is not proper. See Third Hearing Tr. at 25:3-10 (Lucero).

100. Sullivan "shifted away from the pretest interview and actually went into a subtle interrogation" during Begay's July 30, 2013, interview. Third Hearing Tr. at 32:14-16 (Lucero).

101. The FBI does not record its polygraph examinations, including the pre-tests. See Third Hearing Tr. at 25:12-19 (Samore, Lucero).

102. "[A] polygraph is not set up to do an interrogation." Third Hearing Tr. at 31:17-18 (Lucero).

PROCEDURAL BACKGROUND

On March 11, 2014, a federal grand jury indicted Begay for one count of violating 18 U.S.C. §§ 1153, 2241(c), Aggravated Sexual Abuse, and three counts of violating 18 U.S.C. §§ 1153, 2244(a), and 2246(3), Abusive Sexual Contact. See Indictment at 1-2, filed March 11, 2014 (Doc. 2)("Indictment"). Begay allegedly "did knowingly engage in and attempt to engage in a sexual act with ... a child who had not attained the age of 12 years." Indictment at 1. The alleged sexual act included both "penetration" and "intentional touching." Indictment at 1-2. Begay is an Indian and the alleged event occurred in Indian Country. See Indictment at 1. While the case was awaiting trial, Begay filed the Suppression Motion and the Plaintiff United States of America filed the Exclusion Motion.

1. The Suppression Motion.

Begay argues that the Court should suppress his statements to the FBI, because he did not validly waive his Miranda rights and that, even if he had properly waived them, he did not voluntarily make the statements. See Suppression Motion at 6. He argues that "the reading of his full Miranda [rights] and voluntarily and knowing waiver was required to admit any word of his statement for any reason." Suppression Motion at 7. Begay continues that "the recorded representations by the federal agents regarding what rights he had are illusory and inadequate to meet the Miranda Rights standard." Suppression Motion at 7. He concludes that "all the statements given by Mr. Begay must be suppressed in entirety," because they were obtained in violation of Miranda and were not made knowingly and voluntarily. Suppression Motion at 7.

2. The Suppression Response.

The United States responded to the Second Motion. See Suppression Response at 1. The United States argues that Begay's statements to the FBI are admissible. See Suppression Response at 8. First, the United States avers that the "Defendant's three interviews were consensual encounters because Defendant was not in custody and free to leave." Suppression Response at 8. The United States explains that "neither SA Schaeffer nor CI Boyd brandished their weapon at any time, nor did they threaten Defendant with physical force." Suppression Response at 8. SA Schaeffer asked the Defendant if he would be willing to speak to them, and he agreed." Suppression Response at 8. Further, according to the United States, Begay voluntarily agreed to get into Schaeffer and Boyd's vehicle, where the first interview occurred. See Suppression Response at 8. Further, according to the United States, the vehicle was unlocked, and the windows were closed only because it was a hot day in July and the agents kept the vehicle's air conditioner operating. See Suppression Response at 9. The United States emphasizes that Schaeffer told Begay that whenever Begay did not want to answer Schaeffer's questions, Begay was free to leave. See Suppression Response at 9.

Regarding the second interview, the United States contends that Begay traveled "on his own volition" to the FBI office in Gallup and asked to speak with Schaeffer. See Suppression Response at 10. According to the United States, Schaeffer told Begay that Begay was free to leave at any time and did not have to answer questions. See Suppression Response at 10.

Regarding the third interview, the United States avers that Begay was informed of his rights on two forms, and that Begay voluntarily signed both forms waiving his rights. See Suppression Response at 10. The United States adds that at no point was Begay handcuffed or arrested. See Suppression Response at 10. From these facts, the United States concludes that all three interviews were consensual encounters between Begay and the law enforcement agents, see Suppression Response at 10, and that Begay made his statements voluntarily, see Suppression Response at 13. The United States thus asks the Court to deny the Suppression Motion and to allow the jury to hear all three recorded statements that Begay made to the FBI. See Suppression Response at 15.

3. The Reply.

Begay replies to the Suppression Response. See Reply to Response in Opposition to Defendant's Motion to Suppress Statements at 1, filed July 30, 2017 (Doc. 123)("Reply"). Begay states that he was "placed in an imposing Government SUV, the doors shut, and he ... sat with one officer behind him, one at his side, and, next to the officer in the front seat, a shotgun, placed to obviously intimidate." Reply at 3. Begay contends that "placing any suspect in the front seat next to a shotgun with an unseen agent behind, another asking the questions and absorbing primary attention ... skirts the very edge of constitutional propriety." Reply at 6. Begay continues that telling a suspect that a conversation is voluntary does not make it voluntary. See Reply at 6. Begay thus concludes that the Court should grant the Suppression Motion. See Reply at 7.

4. The Exclusion Motion.

The United States moves the Court to exclude two expert witnesses from testifying, Dr. Leo and Lucero. Dr. Leo is a Professor of Law and Psychology at the University of San Francisco School of Law who plans to testify about false confessions. See Defendant's Hearing Exhibit O at 1. Lucero is a former New Mexico State Police officer and a certified polygraph examiner who plans to testify regarding polygraph procedures. See Defendant's Hearing Exhibit U at 1. The United States argues that the Court should not permit Dr. Leo or Lucero to testify, because neither have provided "reports, any literature to support their testimony, or any analysis of what they reviewed in order to become familiar with this case." Exclusion Motion at 1. The United States contends that, without such information, Dr. Leo and Lucero "failed to meet Rule 702's[ ] requirements." Exclusion Motion at 3.

Next, the United States avers that the Court should exclude Dr. Leo's testimony because it is not reliable, and that "false confessions experts such as Leo are unable to accurately predict the frequency and causes of false confessions." Exclusion Motion at 3. The United States also anticipates that Dr. Leo will testify about "law enforcement practices, training, and assumptions generally without tying them directly to the practices, training, or assumptions of the agents who interviewed the Defendant." Exclusion Motion at 6-7. The United States contends that such testimony would be improper, because " 'the expert's opinion must be able to be properly applied to the facts in issue.' " Exclusion Motion at 7 (quoting Hoffman v. Ford Motor Co., 493 Fed.Appx. 962, 975 (10th Cir. 2012) ). The United States therefore concludes that the Court should exclude Dr. Leo's and Lucero's testimony. See Exclusion Motion at 8.

5. The Exclusion Response.

Begay responds to the Exclusion Motion. See Mr. Begay's Response to United States' Motion to Exclude Expert Testimony From Suppression Hearing at 1, filed August 31, 2017 (Doc. 130)("Exclusion Response"). Begay argues that Dr. Leo's testimony regarding false confessions is reliable, and that "psychologists, criminologists, and forensic scientists have all contributed to this cross-discipline body of research." Exclusion Response at 4. Begay adds that "a variety of accepted research methods are utilized in the study of false confessions." Exclusion Response at 5.

Begay then argues that caselaw supports the admissibility of Dr. Leo's testimony. See Exclusion Response at 5. Specifically, Begay avers that " 'Dr. Leo has authored dozens of peer-reviewed publications in the field of police interrogation and false confessions, and has been qualified to testify as an opinion witness over 200 times.' " Exclusion Response at 6 (quoting Caine v. Burge, No. 11 C 8996, 2013 WL 1966381, at *1 (N.D. Ill. May 10, 2013) (Durkin, J.) ). Begay adds that "there is a vast body of decisional law admitting expert testimony about false and coerced confessions, including hundreds of cases in which Dr. Leo himself has testified." Exclusion Response at 6.

Finally, Begay argues that "the Daubert [ ] Gatekeeping function is less limiting on admissible expert evidence when the judge is the factfinder." Exclusion Response at 7. Begay avers that "any concern that the fact-finder will be misled is simply not as pressing when the judge is the factfinder." Exclusion Response at 7 (citing In re Tex. Grand Prairie Hotel Realty, LLC, 710 F.3d 324, 329 (5th Cir. 2013) (Higginbotham, J.) ). Begay concludes that the Court should permit Dr. Leo to testify. See Exclusion Response at 8.

6. The Hearings.

The Court held hearings on August 17-18, 2017 and on November 20, 2017. See First Hearing Tr. at 1:3 (Court); Second Hearing Tr. at 1:2 (Court); Third Hearing Tr. at 1:6 (Court). The United States first called Sullivan to the stand. See First Hearing Tr. at 4:21-22 (Nayback). Sullivan testified that, when she interviewed Begay in the Gallup FBI office on July 30, 2013, she did not have a gun or a visible badge. See First Hearing Tr. at 12:1-3 (Sullivan). Sullivan continued that, at the beginning of her interview with Begay, she read Begay his rights from the Polygraph Consent Form. See First Hearing Tr. at 14:20-25 (Sullivan); id. at 15:1-5 (Sullivan); Polygraph Consent Form at 1. According to Sullivan, "Begay was able to read the waiver and consent form without any trouble," and he signed the form. First Hearing Tr. at 16:2-5 (Sullivan). Sullivan continued that she next read to Begay his rights from the Miranda Form, and that Begay signed the form. See First Hearing Tr. at 17:10-14 (Sullivan); Miranda Form at 1. Sullivan explained that Begay did not seem confused on the morning that she encountered him, and that he never asked for a lawyer. See First Hearing Tr. at 30:5-11 (Sullivan). According to Sullivan, she never made any promises of leniency or family counseling to Begay. See First Hearing Tr. at 33:8-13 (Nayback, Sullivan).

On cross-examination, Sullivan admitted that part of her interrogation technique is to "use charm and verbal skill and body language ... to win over the trust of the person you're interviewing." First Hearing Tr. at 104:3-6 (Samore, Sullivan). When asked about Begay signing the Miranda Form, Sullivan testified that, "when we went over the form and he was advised of his rights, I certainly understood that he knew what each of the rights meant." First Hearing Tr. at 136:5-7 (Sullivan). Sullivan added that she read the Miranda Form to Begay "all the way down to the consent, then he reads the consent." First Hearing Tr. at 136:21-22 (Sullivan).

Regarding the Polygraph Consent Form, Sullivan testified that she read the form to Begay "all the way down to the waiver," and that 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. On re-direct, Sullivan testified that, when she met Begay, he did not seem unsophisticated and that she thought he was articulate. See First Hearing Tr. at 148:10-16 (Sullivan, Nayback). Sullivan continued that Begay never indicated in any way that he did not want to keep speaking with her. See First Hearing Tr. at 151:1 (Sullivan).

The United States next called Schaeffer to the stand. See First Hearing Tr. at 157:23-24 (Wilson). Schaeffer described his July 18, 2013, encounter with Begay at Begay's house. See First Hearing Tr. at 164:1-2 (Schaeffer). Schaeffer testified that he identified himself as an FBI agent with his credentials while standing at Begay's door, that he was dressed in plainclothes, and that his firearm was not visible. See First Hearing Tr. at 164:10-17 (Schaeffer, Wilson). According to Schaeffer, he asked Begay if Begay was willing to speak with him, and Begay said yes. See First Hearing Tr. at 165:14-17 (Schaeffer, Wilson). Schaeffer continued that they spoke in Schaeffer's Chevrolet Suburban, and that he sat in the driver's seat, that Begay sat in the front passenger seat, and that Boyd sat in the rear passenger seat. See First Hearing Tr. at 165:18-25 (Schaeffer, Wilson); 166:1-2 (Schaeffer, Wilson). Schaeffer stated that the vehicle's doors were not locked, but that he closed the doors and windows, and told Begay that he did so to use the vehicle's air conditioning. See First Hearing Tr. at 166:13-17 (Schaeffer). Schaeffer clarified that the doors were not locked at any point. See First Hearing Tr. at 167:9-11 (Schaeffer, Wilson).

Schaeffer testified that an M-4 carbine was mounted on a rack in the vehicle, but that at no point during Begay's interview did Schaeffer access the M-4. See First Hearing Tr. at 167:16-24 (Schaeffer, Wilson). Schaeffer continued that Begay was not handcuffed, and that he informed Begay that Begay was not under arrest, that if Begay wanted to stop the interview or not answer a question, Begay could do so, and that Begay was free to leave. See First Hearing Tr. at 168:1-14 (Schaeffer, Wilson). When asked about Begay's communication abilities, Schaeffer said that he thought Begay was very articulate, see First Hearing Tr. at 168:24-25 (Schaeffer), and that 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). According to Schaeffer, Begay never said that he wanted to leave the vehicle at any time, see First Hearing Tr. at 175:15-18 (Wilson, Schaeffer), nor did he ask for an attorney, see First Hearing Tr. at 176:9-11 (Wilson, Schaeffer).

Schaeffer next discussed his second encounter with Begay, which occurred the next day, July 19, 2013. See First Hearing Tr. at 176:18-19 (Wilson). According to Schaeffer, Begay, unexpectedly and without an appointment, arrived at the FBI office in Gallup and asked to speak with Schaeffer. See First Hearing Tr. at 176:25 (Schaeffer); id. at 177:1-18 (Schaeffer). Schaeffer testified that he spoke with Begay, and informed him 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). Schaeffer added that, during the July 19, 2013, interview, Begay never asked to stop speaking to him, to leave the FBI office, or to speak with an attorney. See First Hearing Tr. at 179:15-21 (Wilson, Schaeffer). Schaeffer stated that he asked Begay if Begay was willing to take a polygraph examination, and Begay agreed to take one. See First Hearing Tr. at 181:17-21 (Wilson, Schaeffer).

Finally, Schaeffer testified regarding Begay's third interview, which occurred on July 30, 2013. See First Hearing Tr. at 183:24-25 (Wilson). Schaeffer was not present during the entire interview, but he testified that, during the part of the interview in which he participated, Begay never asked to stop answering questions or to stop talking, was never handcuffed or arrested, and never asked to speak with an attorney. See First Hearing Tr. at 189:4-15 (Wilson, Schaeffer).

On cross-examination, Begay asked Schaeffer about the M-4 carbine that was in the FBI vehicle during the July 18, 2013 interview. See First Hearing Tr. at 210:6 (Samore). Schaeffer testified that

I wasn't trying to hide the weapon, so [Begay] may have seen it, but I find it hard to believe that [Begay] did see the weapon in the car.... [T]he way the firearm is stored in the vehicle in order for Mr. Begay [to] actually see that firearm he would have to completely turn around and look toward the back seat to be able to see that firearm, and I was watching him the entire time and I don't ever recall him actually doing that.

First Hearing Tr. at 210:11-23 (Schaeffer).

The Court continued the hearing the following day. See Second Hearing Tr. at 1:1-2 (Court). The United States called Boyd to the stand. See Second Hearing Tr. at 16:11-13 (Wilson). Boyd first testified about his July 18, 2013, encounter with Begay, where he accompanied Schaeffer to Begay's house. Boyd said that Schaeffer introduced himself at Begay's door as an FBI agent and introduced Boyd as a tribal investigator. See Second Hearing Tr. at 22:2-8 (Wilson, Boyd). Boyd testified that his badge and his firearm were visible. See Second Hearing Tr. at 22:12-14 (Boyd). He explained that Schaeffer and he interviewed Begay in Schaeffer's FBI vehicle. See Second Hearing Tr. at 23:5 (Boyd). According to Boyd, Begay got into the vehicle voluntarily, was not under arrest, and was not handcuffed. See Second Hearing Tr. at 24:3-9 (Boyd). Further, according to Boyd, the vehicle's doors were closed so that they could use the vehicle's air conditioner, but they were not locked. See Second Hearing Tr. at 24:11-15 (Boyd). Boyd added that Begay was told that he could leave the vehicle at any time during the interview, see Second Hearing Tr. at 25:1-3 (Wilson, Boyd), and that Begay was "very articulate very well spoken for a young man," Second Hearing Tr. at 25:16-17 (Boyd).

Boyd also testified regarding the July 30, 2013 interview. See Second Hearing Tr. 30:19-20 (Wilson). Boyd was not present for the entire interview, but, according to Boyd, during the part in which he participated, Begay never asked for an attorney, to leave, or to stop answering questions. See Second Hearing Tr. at 32:17-24 (Wilson, Boyd). Boyd added that he thought Begay was "very articulate for somebody that's out from the reservation, Navajo reservation that is." Second Hearing Tr. at 33:8-11 (Boyd).

On cross-examination, Boyd admitted that he did not read Begay his Miranda rights during the July 18, 2013 interview. See Second Hearing Tr. at 49:10-12 (Samore, Boyd). Boyd said that he believed Begay voluntarily entered the FBI vehicle because Begay said that he would do so. See Second Hearing Tr. at 49:18-20 (Boyd).

Begay's counsel then called Begay to the stand and announced that he would limit Begay's testimony specifically to Begay's "unrecorded interaction with Ms. Sullivan on July 30." Second Hearing Tr. at 72:20-22 (Samore). Begay testified that, at the beginning of his encounter with Sullivan on July 30, 2013, she did not read the Polygraph Consent Form to him, but rather "explained what it was and kind of left it for me to read myself." Second Hearing Tr. at 77:12-14 (Begay). Begay said that he only had "just an instant you know, to kind of just look over it quick before you know I went to sign" the Polygraph Consent Form. Second Hearing Tr. at 78:7-8 (Begay). When asked if he read the Miranda form, Begay testified that "I looked at it, yeah, and I did read some of it, and you know, the heading, and you know a few of the points and stuff like that ... before I signed." Second Hearing Tr. at 79:21-24 (Begay). Begay added that about ten seconds passed between the time Sullivan showed him the Miranda Form and the time that he signed it. See Second Hearing Tr. at 79:24-25 (Begay). Further, Begay stated that he had never signed a form waiving his Miranda rights before that day. See Second Hearing Tr. at 80:18-21 (Samore, Begay). When asked about taking a polygraph examination, Begay said that he understood how a polygraph worked, and agreed that he was willing to take one. See Second Hearing Tr. at 81:4-12 (Samore, Begay).

Begay then said that, after Sullivan explained to him how a polygraph examination worked, she pushed the polygraph equipment aside, and told him 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). According to Begay, 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, 85:1-3 (Begay). According to Begay, Sullivan said that, if Begay confessed that he was an adult when he allegedly molested Davis, and that he sexually desired to molest her, then Sullivan could get Begay's family some form of help, such as family counseling. See Second Hearing Tr. at 93:12-25 (Begay); id. at 94:1-22 (Begay); id. at 95:10-14 (Begay). Begay continued: "I felt as though that if I didn't answer according to her that I wasn't going to be able to leave." Second Hearing Tr. at 95:14-16 (Begay).

On cross-examination, Begay conceded that, during the July 30, 2013, interview with Sullivan, he "read" the Miranda Form and the Polygraph Consent Form, and understood them. Second Hearing Tr. at 99:17-21 (Nayback, Begay). When asked about taking the polygraph examination, Begay testified that "I felt as though you know they wanted me there that you know.... [this] is something that I was expected you know, to do ... for them." Second Hearing Tr. at 105:8-10 (Begay). Begay suggested that, because of the FBI's authority, he felt as though he needed to take a polygraph examination. See Second Hearing Tr. at 105:11-16 (Begay). Begay conceded that the FBI did not force him to take a polygraph examination, but testified that he was well within the FBI office and felt that "in order to make my way back out ... I need to do what's expected of me." Second Hearing Tr. at 106:2-14 (Begay, Nayback).

The United States then asked Begay about the Polygraph Consent Form. See Second Hearing Tr. at 108:10-11 (Nayback). Begay testified that, during the July 30, 2013, interview, he "skimmed through it not having [read] and comprehended word for word." Second Hearing Tr. at 108:15-16 (Begay). Begay conceded that no one forced him to sign the form. See Second Hearing Tr. at 109:3 (Begay). When asked "so did you understand you have the right to remain silent," Second Hearing Tr. at 111:14-15 (Nayback), Begay responded "yeah," Second Hearing Tr. at 111:16 (Begay).

Begay then testified that he did not understand the Miranda Form's language saying that "if you do ... answer any questions without a lawyer present, you have the right to stop answering at any time." Second Hearing Tr. at 113:22-25 (Begay); id. at 114:1-4 (Begay). Begay also implied that he signed the forms because he was "well within the FBI headquarters" and "I need to go along with what these guys are ... expecting." Second Hearing Tr. at 115:3-6 (Begay). Begay further testified that, when Sullivan showed him the Miranda Form, "at no point in time did she have me recite anything, nor did she read anything off of the form or anything." Second Hearing Tr. at 130:12-14 (Begay).

The United States then asked Begay if he felt that he had to go to the FBI office on July 30th to take the polygraph examination. See Second Hearing Tr. at 133:14-15 (Nayback). Begay testified that "I felt as though I couldn't tell [Schaeffer] no." Second Hearing Tr. at 134:17-18 (Begay). The United States then inquired about the details of Begay's interview with Sullivan.

See Second Hearing Tr. at 135:25 (Nayback); id. at 136:1 (Nayback). Begay testified that Sullivan's interview lasted about three hours and that Sullivan "was very talkative and she had almost more to say than I did, in fact anytime I had a chance to speak she would ... stop me and you know imply and suggest ... whatever direction she wanted to take it." Second Hearing Tr. at 136:9-13 (Begay). Begay further testified that Sullivan did not yell at him, but that she made "little outbursts here and there ... where she was displease[d] at what I was saying." Second Hearing Tr. at 140:6-11 (Nayback, Begay).

When asked if Sullivan explained to him and if he understood that anything he said could be used against him in Court, Begay replied "no." Second Hearing Tr. at 140:17-21 (Nayback, Begay). Begay further testified that, contrary to Sullivan's testimony, Sullivan did not read aloud to him the portion of the Miranda Form clarifying that warning. See Second Hearing Tr. at 140:22-24 (Nayback, Begay). Begay continued that, contrary to his previous testimony, he did not read that portion of the Miranda Form, but rather, Sullivan "ran this by me." Second Hearing Tr. at 141:1-2 (Begay). Begay further contradicted Sullivan's testimony, saying that she had not read aloud parts of the forms nor did she have him read aloud any part of the forms. See Second Hearing Tr. at 142:16-17 (Begay).

Begay then called his first expert witness, Dr. Leo. See Second Hearing Tr. at 174:22 (Samore). Dr. Leo testified that he is a professor at the University of San Francisco School of Law. See Second Hearing Tr. at 176:1-9 (Leo). According to Dr. Leo, approximately thirty-five years of empirical research and dozens of peer-reviewed books exist on the topic of police interrogations. See Second Hearing Tr. at 176:19-25 (Leo). Dr. Leo testified that the study of police interrogations is generally accepted in the social scientific community. See Second Hearing Tr. at 177:15 (Leo). Dr. Leo continued that he has published dozens of peer-reviewed articles, and several books, and that he has "been researching and writing in this area longer than almost anyone else." Second Hearing Tr. at 178:1-5 (Leo). Dr. Leo further stated that he has testified as an expert witness approximately 300 times over the past twenty years. See Second Hearing Tr. at 179:15 (Leo).

Begay then offered Dr. Leo as an expert witness "in the general areas of social psychology and criminology" and in the areas of "police interrogation, psychological coercion and involuntary confession." Second Hearing Tr. at 183:18-22 (Samore). The United States objected to Dr. Leo's admittance as an expert, arguing that "he has provided no opinion," that "there are problems with the methodology," and that, "in this case, specifically, we don't have anything to rely on." Second Hearing Tr. at 184:1-6 (Wilson). The Court said that it would take Dr. Leo's testimony and later decide if Dr. Leo satisfies Daubert, but added that "it doesn't sound like there is a disagreement that he's qualified to offer opinions in social psychology, criminology and ... police interrogation so I'll allow those opinions to be offered in this case. Then we'll decide whether they meet Daubert standards." Second Hearing Tr. at 184:12-21 (Court).

Dr. Leo then explained that the police interrogation process is not designed for innocent people; rather "it's designed for guilty people to move them from denial to admission." Second Hearing Tr. at 187:17-20 (Leo). Dr. Leo distinguished between the terms "interview" and "interrogate" in the police context, explaining that "there is no reason an innocent person should ever be interrogated according to police training," and that the police "interview" innocent people rather than "interrogating" them. Second Hearing Tr. at 187:20-23 (Leo).

Dr. Leo elaborated that a problem with police interrogations is that the police "are taught and trained to make a judgment that somebody is guilty [of the] crime before they interrogate ... and that the goal of the interrogation is to get a confession." Second Hearing Tr. at 192:5-10 (Leo). According to Dr. Leo, "when they say we're just trying to get the truth what they really mean is they're trying to get what they already believe to be the truth." Second Hearing Tr. at 192:10-13 (Leo). Dr. Leo explained that the police are taught techniques to get a confession. See Second Hearing Tr. at 192:24-25 (Leo). Specifically, according to Dr. Leo, police are taught to do two things: first, "to convince the suspect he or she is caught, the evidence establishes their guilt ... [and] there is no way [out]," and, second, to induce "a suspect to think that it's to their advantage to their benefit whether moral or psychological or legal or other reasons to confess." Second Hearing Tr. at 192:25 (Leo); id. at 193:1-12 (Leo). Dr. Leo added that another technique is to minimize a confession's consequences, or to magnify the consequences of refusing to confess. See Second Hearing Tr. at 194:4-9 (Leo).

Dr. Leo then discussed the interrogations that occurred in this case. See Second Hearing Tr. 213:20-21 (Leo). He testified that "there were a number of interrogation techniques, some of which I've described, used on [July 18th, 2013]." Second Hearing Tr. at 213:20-22 (Leo). Dr. Leo stated that, "particularly on the 18[th], there had been many techniques used that were standard guilt presumptive." Second Hearing Tr. at 214:9-11 (Leo).

Dr. Leo then spoke about Sullivan's unrecorded July 30, 2013 interview with Begay. See Second Hearing Tr. at 214:14-19 (Leo, Samore). Dr. Leo thought that "this was a guilty presumptive interrogation," Second Hearing Tr. at 215:1-2 (Leo), because Sullivan was told that Begay's statements on July 18th, 2013 were confessions, and Sullivan assumed that Begay's statements were true, see Second Hearing Tr. at 215:19-21 (Leo). Dr. Leo was also concerned about the way in which Sullivan described the July 30th interview. See Second Hearing Tr. at 216:17-19 (Leo). Dr. Leo stated that the interview was not a polygraph pre-test, but rather, was an interrogation. See Second Hearing Tr. at 216:17-19 (Leo). Dr. Leo added that "I'm concerned there was no recording, I think [Sullivan] should have recorded within FBI policy, this was not a pretest it was a guilt presumptive interrogation." Second Hearing Tr. at 217:5-8 (Leo).

Dr. Leo then testified about false confessions. See Second Hearing Tr. at 232:14-17 (Leo). He stated that "interrogators are trained when somebody says they don't remember a crime, don't tell them they remember. That increases the risk [of] false confessions." Second Hearing Tr. at 232:15-17 (Leo). Dr. Leo continued that "we see this over and over again in the interrogation on the 18[th]. [Begay] keeps saying I don't remember.... There is a type of false confession where the person admits to something despite having no memory." Second Hearing Tr. at 232:18-22 (Leo).

Dr. Leo elaborated that a sign of this false confession is conditional or subjunctive language where the suspect says "I could have done this, I probably did this. I would have done that, I might have done the other." Second Hearing Tr. at 232:24-25 (Leo); 233:1 (Leo). Dr. Leo stated that the July 18, 2013, interrogation "is rife with this. Mr. Begay is essentially adopting their suggestion[s]." Second Hearing Tr. at 233:4-5 (Leo). On cross-examination, however, when asked if he could say that a false confession occurred in this case, Dr. Leo stated: "No, I think that would be outside the scope of my testimony." Second Hearing Tr. at 241:8-9 (Leo).

The Court continued the hearing on November 20, 2017. See Third Hearing Tr. at 1:3-6 (Nayback, Court). Begay called Lucero to the stand. See Third Hearing Tr. at 4:14-15 (Court). Lucero testified that he is a licensed polygraph examiner in New Mexico, see Third Hearing Tr. at 5:2-4 (Lucero), and that he previously worked for the New Mexico State Police for twenty-one years, see Third Hearing Tr. at 5:9-10 (Lucero). Lucero explained that, when he was a police officer, he was selected to go to polygraph school and attended the Baxter School of Lie Detection, where he received polygraph training. See Third Hearing Tr. at 6:8-11 (Lucero). He added that he has testified in New Mexico state courts fifty-seven times, see Third Hearing Tr. at 11:4-5 (Lucero), and in federal courts three times, see Third Hearing Tr. at 10:23-24 (Lucero).

Begay then offered Lucero as an expert in polygraphy. See Third Hearing Tr. at 11:10-11 (Samore). The United States objected and began to voir dire Lucero. See Third Hearing Tr. at 11:13-14 (Nayback). On voir dire, Lucero stated that he planned to testify about polygraph standards that the American Polygraph Association makes, in contrast to federal polygraph policies. See Third Hearing Tr. at 14:21-23 (Nayback, Lucero).

On continuation of direct, Lucero spoke about polygraph pre-test procedures. See Third Hearing Tr. at 25:3-4 (Lucero). He explained that a polygraph pre-test interview usually takes twenty or thirty minutes, and that, in his opinion, a three-hour pre-test interview is not proper. See Third Hearing Tr. at 25:3-10 (Lucero). He further stated that the only thing which the FBI does differently from the American Polygraph Association's standards is that the FBI does not record its polygraphs, including the pre-tests. See Third Hearing Tr. at 25:12-19 (Samore, Lucero). Lucero continued that "a polygraph is not set up to do an interrogation," Third Hearing Tr. at 31:17-18 (Lucero), and that, during the July 30, 2013 interview, Sullivan "shifted away from the pre-test interview and actually went into a subtle interrogation," Third Hearing Tr. at 32:14-16 (Lucero).

The United States began cross-examining Lucero. See Third Hearing Tr. at 34:3-6 (Court, Nayback). On cross-examination, Lucero stated that "a polygraph test was not administered to Mr. Begay." Third Hearing Tr. at 34:15-16 (Lucero). At the conclusion of Lucero's testimony, the Court stated that it would allow Lucero to offer opinion testimony about polygraphy. See Third Hearing Tr. at 51:25 (Court). At the hearing's conclusion, the Court stated that it was inclined to admit Dr. Leo's testimony, at least partially, see Third Hearing Tr. at 70:21-25 (Court); 71:1-5 (Court), and that its inclination was that Begay's statements were voluntary, see Third Hearing Tr. at 71:22-24 (Court).

RELEVANT LAW REGARDING EXPERT TESTIMONY

"Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide." United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M. 2011) (Browning, J.). "The Court now must not only decide whether the expert is qualified to testify, but, under Daubert v. Merrell Dow Pharmaceuti