United States v. Woody, 45 F.4th 1166 (10th Cir. 2022) Fourth Amendment challenge to statement; Miranda issue; admissible hearsay if for medical purposes sexual assault edition; substantive reasonableness of sentence. Mr. Woody was convicted after a jury trial of one count of aggravated sexual abuse (CSPM) of Jane Doe1 and two counts of abusive sexual contact (CSCM) of Jane Doe2. Jane Doe1 lived with her mom and stepdad (Mr. Woody); while visiting her dad, she told him that Mr. Woody was molesting her. Dad took Jane Doe1 to the emergency room. Dr. Pilon examined Jane Doe1 including taking a medical history. The medical history included who molested and how molested. The doctor didn’t find any physical injury and reported to Navajo Nation Social Services who in turn notified the FBI. Two FBI agents (Zuercher and Clancy) in plain clothes with their guns hidden drove an unmarked car to track Mr. Woody down. They eventually find him at his niece’s house. He was under a car fixing it when the FBI rolls up. They say they’re FBI and looking for Mr. Woody; Agent Z asks if Woody will talk to them and suggest maybe they not talk in the front yard. They go into the niece’s mobile home. The FBI asks some general questions and then they ask about Jane Doe1’s claims. Mr. Woody balks. So, following some make-the-suspect-think- you’re-his-buddy interrogation advice, Agent Z “told Mr. Woody that if the abuse was ‘a one-time thing,’ it could be ‘explained away’ and would be ‘no big deal’.” (Can we put up a billboards that say: “the FBI is not your buddy” and “no 13 year old girls on the internet want to see your junk”? There were no internet girls in this case. But still I feel like if our clients could grasp these two things it would help their cases tremendously.) Mr. Woody then allows that maybe something happened when he was drunk. Agent Z then assured him that he would not be arrested that day (how clear that the limit on arrest was just to that day was to Mr. Woody is unknown) but they just really needed “to know what happened that night just so we can make sure that we’ve covered everything that we needed to cover.” The FBI somehow gets Mr. Woody to draw a diagram (!) of how he penetrated Jane Doe1’s vagina and write an apology letter to Jane Doe1. (Okay, new billboard: “Do not draw anything for the FBI; do not write letter’s at FBI’s behest.”) After this, the FBI tells Mr. Woody they may call him later with more questions and maybe ask him to take a polygraph. Then they shake his hand and wander off. Now Agent Z realizes that Mr. Woody had lived with a different woman and her daughter (Jane Doe2) a decade ago. So he talks to Jane Doe2. She tells him that Mr. Woody molested her – but seems to limit it to touching. Agent Z calls up Mr. Woody and asks him to come in for a little chat. Mr. Woody agrees. When he gets to the station (a New Mexico State Police Station in Cuba), Agent Z introduces him to Agent Z’s good friend, Agent McCaskill, who just happens to be a polygraph examiner. Both agents were dressed in plain clothes, Agent Z’s gun was hidden, and Agent McCaskill didn’t have a gun. They didn’t pat Mr. Woody down or search him in anyway. Nor did they handcuff him or restrain him in anyway. Agent McCaskill takes Mr. Woody into a room where the polygraph was set up. Agent Z waited outside. The door is closed but not locked. Apparently there are a lot of forms associated with polygraphs and Agent McCaskill painstakingly (according to the opinion) went through them. He started with the standard FBI advice-of-rights/Miranda form (which SCOTUS seems enamored of – they always point out how good it is in insufficient warning cases). Mr. Woody said he understood his rights. Agent McCaskill asked if he was willing to answer questions without an attorney present. Mr. Woody twice responded, “I guess,” and both times Agent McCaskill told him that he needed a clearer answer than that, stating, “If you want an attorney, if you don’t want to answer questions today, then that’s your right.” Eventually, Mr. Woody says he will answer questions and signs the FBI’s paradigmatic form (on McCaskill’s computer, I do not know why that is important but the opinion specified it, so I’m just passing it along). Then, Agent McCaskill pulled up the polygraph specific forms. He repeated that Mr. Woody didn’t have to take it and he could leave at any time. Mr. Woody signed these forms as well. Agent McCaskill asked Mr. Woody some getting to know you questions. And since it’s the FBI, these questions included “Did you diddle Jane Doe2?” Mr. Woody answered, “Well, I used her hand to touch my penis, does that count?” (The conversation is reconstructed from my imagination which is really how most reconstructions of records go.) Agent McCaskill was flabbergasted by the admission and got Agent Z. Agent Z started recording his conversation/interview and asked again about JaneDoe2. Mr. Woody reports 2 instances of CSPM with JaneDoe2 and the one CSPM with Jane Doe1. For whatever reason, these admissions meant no polygraph. The FBI then got Mr. Woody to write an apology letter to Jane Doe2. And so, we cheerfully head off to trial. Recognizing that those admissions might make trial a wee bit of a challenge, defense counsel moved to suppress the statements and opposed the admission of the doctor’s testimony about what Jane Doe1 said to him. The court below (and on appeal too to be honest) was having none of it. It was all admitted and Mr. Woody (to no one’s surprise but his own) was convicted of all charges. At sentencing, he gets 3 concurrent life sentences; he asked for 30 years. The Tenth Circuit decides that Jane Doe1’s statement to Dr. Pilon was made for purposes of medical diagnoses or treatment and thus is an admissible exception to hearsay. (My evidence professor had a useful, if not 100% legally accurate, way of differentiating between admissibility of hearsay when the declarant was available and unavailable. If the declarant was available and it was admissible it was an exception (legally correct); and if the declarant was not available but the hearsay/statement was still admissible, then it was not-hearsay (not really legally correct). Under this construction, the statement to Dr. Pilon is an exception not not-hearsay. The Tenth does not actually discuss if Jane Doe1 was available but them’s the rules.) The Tenth acknowledges that in general, a statement about who did the abuse is not for purposes for medical treatment or diagnosis but the abuser’s identity can become “reasonably pertinent” to treatment or diagnosis (usual presentation: abuser has chlamydia so it is necessary to know the identity of the abuser because need to know about the chlamydia) but here the Tenth agrees that here despite no STD concern, it was still relevant. Custody was shared between parents and mom still lived with Mr. Woody, so need to know that he was the abuser to evaluate her ongoing safety. Before you get too excited that there is no ongoing custody issue or STD in your case so you can totally get around that exception, the Court also pointed out that individuals who suffered from “ongoing domestic sexual abuse,” often have continuing issues stemming from the ongoing abuse and so the identity is always important to identify and treat those issues. [Echo of door slamming.] The Court also makes clear that this testimony is not expert testimony and did not reflect Dr. Pilon’s opinion that the abuse did in fact happen. As a way to keep us hopeful, the Tenth does allow if it was his expert opinion that the abuse happened because of what Jane Doe1 said, it would not be admissible. Mr. Woody challenges his first confession at his niece’s house as the product of an unlawful seizure/Fourth Amendment challenge rather than a Fifth Amendment challenge. The Court points this out and says it will not consider any Fifth Amendment challenge (not that it likely would be successful) just because they like to has that moment of panic that we somehow missed the winning issue. So, the argument is that his statement is the fruit of the poisonous tree and the poisonous tree is the unlawful seizure. The Court never gets to this precise question, instead holding it was not an unlawful seizure. Sigh. Everyone agrees that there was no reasonable suspicion to seize Mr. Woody so it all comes down to whether the encounter was consensual. The Court has a list of things to consider in determining if someone would feel free to leave (that they remind us is “non-exhaustive”) like: the location of the encounter; number of officers and their demeanor and tone of voice; if they’re in uniform; if they’re displaying their weapons; if they have anything of the defendant's (e.g. ID) and how long they hold on to it; whether the officers touch or physically restrain the defendant; if they’ve told the person they are free to leave. Running through this list, the Tenth Circuit decided that since the encounter occurred in the niece’s home it wasn’t public and that weighed in favor of it being non-consensual. The Tenth then extols the virtues of the FBI: the only touching was shaking of hands; they didn’t show their weapons; they were polite (“conversational and respectful”); they were in plain clothes; they didn’t have his ID or anything; and there were only two of them. Mr. Woody counters with Agent Z outright lied to him about it not being a big deal (because it turned out to be a very big deal – while I can see the Tenth saying that technically, it wasn’t a lie, it was an understatement! They instead take the opportunity to tell us that law enforcement can lie with impunity most of the time); the Agents walked onto private property when he was under a car repairing it so he couldn’t just leave. (The Tenth does not say if there was a sidewalk or anything about the house and its curtilage, like was the car around the back of the house?) The Agents never told Mr. Woody that he didn’t have to talk to them. The Tenth Circuit acknowledges these factors don’t look good, but lying (by law enforcement) isn’t bad per se. It would only invalidate consent if the lie was something like “Hey, we think there are live bombs in your house, so can we look around?” (Remarkably, this hyperbole is from an actual case, United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011).) And well, it was at his niece’s house but he invited them in (ooh! New ad campaign: “Cops are vampires! Do not invite them in!”). And because it is the Tenth Circuit, they speculate “a reasonable person might feel freer to decline to speak with police after being told that the alleged crime was ‘no big deal’.” at 1176. The Tenth Circuit judges are apparently not easily intimidated and think we would all react like confident old white men.[1] (I’m trying Hartz’ approach of putting important but not necessarily on point thoughts in a footnote. If you do not know what I am talking about please read either United States v. Cortez-Nieto, 43 F.4th 1034 (10th Cir. 2022) or my summary of it.) Anyway, this admission (and letter and drawing) come in. Defense counsel also tried valiantly to prevent the statements given prior to the polygraph-that-never-happened from coming in; specifically, he argued that Mr. Woody’s Miranda waiver was not knowing and voluntary. The Tenth Circuit gives this argument short shrift. They merely say the waiver is just fine because there is no whisper “of any deficiency in Mr. Woody’s mental state or mental capacity” and the agents did not commit a crime of violence against him. (Okay, they actually said, “The agents never threatened to use or used any physical force against Mr. Woody.” But given the definition of a crime of violence, “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” I’m sticking by my characterization.) His equivocal “I guess” response didn’t render the waiver involuntary because Agent McCaskill sought to clarify that answer “to ensure Mr. Woody’s uncoerced willingness to continue with the interrogation.” It didn’t mean he pressured Mr. Woody into giving his statement. The Tenth also points out that there is a question about whether Mr. Woody is in custody (hinting they really don’t think he’s in custody), but that since they determine the waiver was fine they didn’t have to address that. As for the life sentence rather than 30 years? The Tenth says it is substantively reasonable because the judge explained why the sentence he imposed was “sufficient, but not greater than necessary, to comply with the four purposes that 18 U.S.C. § 3553(a)(2) enumerates.” (The judge literally said magic words that inoculated the sentence from the Tenth looking skeptically at it.) Upon further reflection on the ad campaign, maybe nix the “cops are vampires” billboard? I think we’d also have to say don’t behead them and don’t stab them in the heart with a wooden stake. The other billboard ideas are solid. The one about “No 13 year old girl on the internet wants to see your junk” is critical; I made a joke about it once and an acquaintance of mine insisted there really are 13 year old girls on the internet who want to see your junk. But no, just no. That 13 year old girl is a cop (or one of those on-line vigilante people). [1] Slight diversion to one of my windmills: I know that United States v. Easley, 911 F.3d 1074, 1081 (10th Cir. 2018) says we shouldn’t “consider subjective characteristics like race as part of our reasonable person analysis.” And then the 11th doubled down on that in United States v. Knights, 989 F.3d 1281, 1288 (11th Cir. 2021), cert. denied, 142 S. Ct. 709 (2021) (“We may not consider race to determine whether a seizure has occurred.”)) But I think it’s important to keep pointing out that race matters. And in our indigenous clients’ cases, there is also the historical trauma of colonization and the continued dismissal of tribal sovereignty. I still think that JDB provides a jumping off point because of the similarities of analysis of the “objective” custody analysis and the “objective” seizure analysis. They consider demeanor and tone of voice, how many and how they’re dressed. They’re making subjective assumptions on how those things are perceived. Is a uniform more intimidating than a suit? (I admit I’ve never actually seen a cop in a suit outside of court or TV but still, suits are power – hence calling people in power “suits.”) Does it matter if the guy’s tone of voice is polite if he’s giving orders? (There was a state case where they searched the guy’s house without a warrant, and they said it was consensual because the cops were polite despite the fact the guy felt he had to ask permission from the cop to do anything in his own house.) And a bunch of men is more intimidating than a mixed gender group – but I can disguise that one more by pointing out disparities in size between our client and the officers. Still there is a hidden subjective perception that bigger is more intimidating: but is someone who is small but really strong and fit really less scary then someone who is tall but obviously out of shape? Okay, jumping off the soap box.