from the United States District Court for the District of New
Mexico (D.C. No. 1:12-CR-00163-MCA-1)
A. Pori, Office of the Federal Public Defender, Albuquerque,
New Mexico, for Defendant-Appellant.
R.W. Braun, Assistant United States Attorney, (Damon P.
Martinez, United States Attorney, with him on the brief), Las
Cruces, New Mexico, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.
sole issue on appeal is whether self-incriminating statements
by Defendant Gavin Yepa during a search of his person
authorized by a warrant were spontaneous or were the result
of interrogation. We affirm the district court's ruling
that the statements were spontaneous. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm Defendant's
was convicted by a jury in the United States District Court
for the District of New Mexico of first-degree felony murder
in the perpetration of aggravated sexual abuse in Indian
country. See 18 U.S.C. §§ 1153 & 1111.
Evidence at trial showed that near midnight on December
28-29, 2011, Defendant knocked on the door of his neighbor,
Clint Sando, and told him that there was a woman at his house
who was not breathing. They ran to the house, where Sando
found Lynette Becenti's naked body on the floor, covered
in blood. A later autopsy determined that she was likely
killed by a shovel that was forced 15-16 inches into her
was arrested at his home and advised of his rights. He said
he wanted a lawyer. He was then driven to the Jemez Pueblo
Police Department about 2:45 a.m. FBI Special Agent Ben
Bourgeois obtained a telephonic warrant to search
Defendant's home and his body. The warrant authorized
photographing Defendant, taking his clothes for analysis,
taking a blood sample for intoxication, and swabbing areas of
his body for DNA testing.
4:20 a.m. Bourgeois began executing the search of
Defendant's body in a police-department conference room.
He was assisted by the chief of the Jemez Police, Mike Toya;
the leader of the FBI's Evidence Response Team (ERT),
Diana Parker; and another ERT member, Norm Sedillo. The
search, which took a bit more than 50 minutes, was
audio-recorded; the recording was later transcribed. During
the search, Defendant made various statements, some of which
were apparently in Towa, the language of the Jemez Pueblo.
The record contains no translation of those portions.
analyze Defendant's claim, we must quote in some detail
the transcript of the conversation during the search of his
person. The officers' statements alleged by Defendant to
constitute interrogation are italicized. We have deleted most
expletives from the transcript, but all the expletives were
Defendant's; we have reproduced the officers'
statements unaltered. The recording shows the time that has
elapsed during the search, and we provide that information
for the portions we quote. What is striking from the
recording is that Defendant's incriminating statements
are scattered throughout, without any apparent connection to
what is going on at the time, and that the officers are
focused on performing their search, rarely reacting in any
way to what Defendant says about the offense.
began the search by informing Defendant that he and his team
would take some photos of Defendant and would then seize his
clothes "because they've got blood on them."
Supp. R., Vol. 1 at 3 (Tr.) (CD at 1:28-1:38). Next,
Bourgeois introduced Defendant to Diana Parker, stating
"Gavin, this is my partner, Diana, she's gonna snap
some pictures of you." Id. at 5 (CD at
3:37-3:43). He also removed Defendant's handcuffs and
instructed him how to stand for the photos. Without any
prompting, Defendant stated, "I'm not a killer, man.
I'm not a murderer, man. I'm not nothing like that,
man. I'm just a normal guy, man. I came home, tried to
get some pussy, and pussy got me." Id. at 6 (CD
at 4:18-4:32). Bourgeois responded: "Okay. Just follow
Diana's directions for right now." Id. (CD
officers were taking photos, Bourgeois stated, "Hold on.
Do you have any scars? Marks? Anything like that?
Hold on. Hold on. Let's take one thing at a time. Turn
back around." Id. at 7 (CD at 5:36-5:48)
(emphasis added). The next thing Defendant said was,
"Don't they have my file here already?"
Id. (CD at 6:11-6:25). He then complained about the
cold, but followed that up with, "I can take more
clothes off." Id. at 7-8 (CD at 7:00-7:09).
After further photos, Defendant stated, "Be in this
predicament. I don't (inaudible) get in trouble for
killing anybody. I didn't do anything." Id.
at 8 (CD at 7:50-8:00). Parker responded, "Don't
worry about it. It'll work out. Face the wall."
See id. (CD at 8:00-8:03).
responding to Defendant's comment about the cold, Sedillo
then stated, "I'm trying to warm this up, " and
Bourgeois added, "He's a tough guy."
Id. at 8- 9 (CD at 8:04-8:10) (emphasis added).
Defendant responded, "Yeah, man. Well, when it comes to
my son (inaudible). I wanna see my son. (Inaudible) accuse of
me of killing this lady." Id. at 9 (CD at
the officers continued taking photos, Defendant asked them to
notify his mother of his arrest. After Chief Toya said he
would talk to her, Defendant again asserted his innocence,
stating, "You know, I'm not a murderer, man. This
happened at my house, dude. You know, of course I'm
trying to get some pussy. I didn't do shit, man."
Id. at 11 (CD at 12:21-12:32). The officers did not
respond to his assertion; but Bourgeois asked for his
mother's name and phone number. Bourgeois then pointed
out abrasions on Defendant's body that he wanted
Bourgeois: Did you guys get this -- it almost looks like an
abrasion right here.
Parker: Behind the ears, yeah.
Male Speaker: On the eyebrow there?
Bourgeois: Yeah. Almost.
Male Speaker: Yeah. That side.
Defendant: That's a pimple, man. (Inaudible). I don't
know what I did with my face. You guys are trying to figure
out some. (Inaudible), man. (Inaudible). I've told you
guys. I thought you guys were investigators, man.
Bourgeois: You're not a real modest guy, are
Defendant: Nope. No.
Bourgeois: Okay. Tell you what we're gonna do. I'm
gonna do you a favor. Norm and I are gonna sit in here --
Bourgeois: I'm gonna ask Frank to stay here, too.
Defendant: That's what I was thinking, I was like. Is he
gay or something?
Bourgeois: Let me have you back up against the wall a little
Parker: You gotta focus with the very top ring, very top
ring. You see it?
Male Speaker: Okay. Let's see.
Defendant: My toes are bloody. My feet are bloody.
Bourgeois: Hold on. Hold on.
Defendant: My face is bloody.
Id. at 13-14 (CD at 14:43-16:19) (emphasis added).
the officers took some more photos and Defendant made some
irrelevant comments, he again attempted to engage the
officers in conversation about the killing:
Sedillo: Go ahead and leave the toes flattened out.
Defendant: You guys really think I killed that chick or
something? Off the ...