United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO SUPPRESS
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
Katherine O'Neal (“O'Neal”) went to trial
in February and March 2018 on one charge of unlicensed export
of firearms to the Dominican Republic (18 U.S.C. §
554(a)); twelve charges of making false statements on a
firearm purchase form (18 U.S.C. § 924(a)(1)(A)); and
four charges of international money laundering (18 U.S.C.
§ 1956(a)(2)(A)). A jury found her guilty on the
unlicensed export count, but acquitted on all remaining
counts. O'Neal's sentencing is scheduled for August
trial has already concluded, the Court currently has before
it O'Neal's pretrial Motion to Suppress. (ECF No.
39.) This Motion seeks to suppress statements O'Neal made
to Dominican Republic law enforcement officials, and
statements made to an American special agent working for the
Department of Homeland Security and stationed at the U.S.
embassy in the Dominican Republic. O'Neal claims that her
statements were not made after valid Miranda
warnings, and otherwise not made voluntarily.
respond to O'Neal's arguments, the Government needed
to bring in witnesses from the Dominican Republic, many of
whom are the same witnesses the Government planned to call at
trial. So that the Government was not forced to arrange for
these witnesses to travel to Colorado twice, the Court
elected to hold a suppression hearing the week before trial
(the “Suppression Hearing”) and to provide a
brief ruling soon afterward. The Court held that hearing on
February 20, 2018. (See ECF No. 105.) At the
conclusion of the hearing, the Court orally announced that it
would deny the Motion to Suppress and briefly summarized its
reasoning. The Court also stated that a more detailed written
order would follow. This is that written order.
Court's oral ruling denied the Motion to Suppress in
full. Upon further consideration, the Court now concludes
that it should have granted the Motion as to statements
O'Neal made to the Homeland Security special agent
because he did not give O'Neal Miranda warnings.
But, in light of the jury's verdict and the testimony the
agent actually gave at trial, the Court finds that this error
was harmless beyond a reasonable doubt. As to the remainder
of the Court's oral ruling, the Court reaffirms it for
the reasons stated below.
flew to the Dominican Republic on Delta Airlines on June 6,
2015, with eleven handguns and some ammunition in her
luggage. She declared the handguns and ammunition to Delta.
Her luggage, however, did not make it all the way to the
Dominican Republic with her that day.
to O'Neal's briefing submitted in support of the
Motion to Suppress, this luggage hiccup precipitated an
extended encounter with law enforcement officials. Given its
significance for purposes of assessing O'Neal's
credibility when compared to her testimony at the Suppression
Hearing, the Court quotes the factual averments in her
related briefing at length, as follows:
Statements on June 7, 2015, Outside the Santiago
On June 7, 2015, Ms. O'Neal arrived at the Cibao
International Airport - Santiago Airport - in Santiago,
Dominican Republic. She was led to believe by either airport
personnel or law enforcement there that if she came to the
airport she could retrieve luggage which purportedly had not
arrived with her flight.
Ms. O'Neal was not reunited with her luggage, as
promised. Instead, she was immediately confronted by
Dominican military law enforcement. A Dominican law
enforcement officer, Major Nova-Nova,  met her outside
the airport. He spoke with her in the outdoor driveway
designated for passenger pick up for approximately 20
minutes. He confirmed her identity and elicited from her the
admission that she was at the airport to pick up lost luggage
which contained 11 firearms. In response to his questioning,
she explained that she had brought weapons into the country
to give to her family members.
The conversation was tense and turned confrontational when,
at the conclusion of the conversation, Major Nova-Nova
forcibly grabbed Ms. O'Neal by the arm near her elbow and
pushed into the interior of the airport. Ms. O'Neal was
given no choice in this matter. Major Nova-Nova directed her
verbally to go inside to answer his questions.
Worse, he acted physically against her to enforce this order.
Major Nova-Nova tightly held her arm near the elbow and
pushed her ahead of him, forcing her into a small office
Not only did Major Nova-Nova physically move Ms. O'Neal
in his efforts to get her to speak to him, in short order he
also made sexually aggressive and suggestive comments to her
which humiliated and demeaned her. During the walk from the
outdoor passenger pick up area to the office, he made a
derogatory comment that O'Neal's butt would look nice
in a pair of jeans. Ms. O'Neal was shocked and angered by
this. She was fearful. In reply, she called the Major a
“son of a bitch.”
Statements on June 7, 2015, in the Office at the Santiago
The harassment and unwanted physical and sexual contact
continued in the office. Major Nova-Nova led Ms. O'Neal
into a small office in the baggage claim area of the airport
where he questioned her further (she believes this was for a
short time - less than 1 hour).
The room was small with only a table as furniture. There was
nowhere for her to go; no way to escape the sexual touching.
Upon their entry into room, Major Nova-Nova slid his hand
from Ms. O'Neal's elbow, down her lower back, and
onto her buttocks. He grabbed her on the buttocks. It was in
this hostile and intimidating milieu that he further
questioned her about the guns in her luggage.
Eventually, Major Nova-Nova locked her in the room. This
happened when he left the room for approximately 5-10 minutes
and Ms. O'Neal tried to the open the door but realized it
Facing this barrage of unwelcome advances and now locked in a
room by her tormentor, she began to feel dizzy and light
headed. Critically, Ms. O'Neal, a rape survivor, also
experienced flash-backs to her prior sexual assault.
Believing that she was on the verge of being sexually
assaulted, Ms. O'Neal sought medical attention when Major
Nova-Nova returned. She was removed from the room by a nurse
and briefly taken to a medical clinic located inside the
C. Transport from Santiago to Sant[o]
Domingo Unfortunately, the ordeal was nowhere near
over. After questioning Ms. O'Neal in the small office at
the airport, Major Nova-Nova, accompanied by two additional
Dominican officers unknown to Ms. O'Neal, transported her
to the J-2 Office in Santo Domingo, an approximately 2 hour
Strangely, but contributing to her sense of helplessness,
Ms.O'Neal was driven in her personal vehicle by these
officials. She verbally protested this highly unusual
arrangement, but to no avail. Fearful of Major Nova-Nova, she
refused to sit in the front passenger seat.
On the way there, Ms. O'Neal became concerned about the
manner that the officer was driving her car. She demanded
that Major Nova-Nova slow down.
Conversely, he sped up and drove the vehicle recklessly, way
too fast for traffic conditions and slamming on the brakes at
least once, nearly hitting another vehicle. All the while, he
kept up his sexual advances, at one point commenting to her
about how she would look wearing tight jeans instead of her
June 7, 2015, First Interview
Upon arrival at the J-2 Office, Ms. O'Neal was handed off
to two J-2 officers.
She was not free to leave and, in fact, was again forcibly
escorted as the officers held on to each of arms near the
elbow and pushed her into the building and into an office she
believes was located on the second floor.
During this escort, law enforcement continued to act
inappropriately. While escorting her, the officers joked
about which of her 11 firearms they were going to keep for
Eventually, they placed Ms. O'Neal in a very small
windowless office containing only a desk and file cabinet.
Two Dominican law enforcement officials began to interrogate
her in that office. During this interrogation, officers told
Ms. O'Neal that she was going to be asked questions which
she was required to answer. They coerced answers
from her by threatening her family with violence.
Specifically, they told her that, if she did not answer the
questions the way that they told her to, the officers would
“hurt” her cousin Jose Luis (the cousin who had
accompanied her to the airport earlier that day). The
officers repeatedly threatened to beat and rape Jose Luis if
Ms. O'Neal did not cooperate with them.
As the interrogation continued, the officers were physically
aggressive with her. They pushed her around the small office.
Finally, at no time did they attend to her physical needs. By
this time, at least three hours had passed since Ms.
O'Neal had last eaten or drank any water. Although she
requested a glass of water, the officers refused to provide
any. Instead, they took her to an interview room for further
E. June 7, 2015, Second Interview
Three Dominican officials escorted Ms. O'Neal from the
windowless little office to an interview room next door where
they interviewed her for 3 hours. This second interview room,
like the first, had no windows and contained only a small
table and chairs. Ms. O'Neal sat on one side of the table
with an officer sitting directly next to her. Another officer
held a video camera placed on a tripod. Ms. O'Neal was
given a piece of paper which contained both a series of
questions and answers. Prior to beginning the interrogation,
Ms. O'Neal was again threatened - if she did not
cooperate they would “hurt” her cousin.
Still being filmed, and by now petrified, Ms. O'Neal
began reading the answers off of the paper. Anytime, she
hesitated in responding, she was told that the camera would
be turned off and that they would start again.
Significantly, the sexual harassment resumed during this
interview. Throughout, this question and answer, the officer
seated next to her was patting and rubbing her knee.
At the conclusion of this interview, Ms. O'Neal was
returned to the small office. She remained there all night,
as detailed below.
F. Spending the Night in the J-2 Office
Nervous and extremely fearful for her physical well-being,
Ms. O'Neal requested a female officer accompany her. A
female officer arrived some time later and Ms. O'Neal was
locked in that office with the female officer overnight.
Ms. O'Neal slept on the hard office floor with no
bedding. She was given neither food nor water. Because she
was not allowed to use a bathroom she urinated on herself at
some point during the night. At most, Ms. O'Neal slept an
At one point, Ms. O'Neal noticed that the female officer
was taking pictures of her with a cell phone while smiling
G. June 8, 2015, Interview
The next morning, a hungry, soiled and sleep-deprived Ms.
O'Neal was escorted to an open area outside of the small
office where she spent the night. She was seated at a table
where she was questioned by 5 unknown law enforcement
officers. Reports indicate that a U.S. HSI official, Larko,
was present during this interrogation along with Dominican
Transnational Criminal Investigation Unit officers Castillo
Ms. O'Neal was not Mirandized prior to this interview.
She was again asked a series of questions about the firearms
and other related topics. At this point, Ms. O'Neal had
not eaten or drank any water in nearly 24 hours. She had not
been given the opportunity to use a bathroom - although she
had urinated on herself at least twice.
She had only had about 1 hour of sleep on the floor of the
After this interrogation, Ms. O'Neal was transported,
again in her personal vehicle, back to Santiago and detained
in the local women's prison where eventually, she would
suffer repeated assaults.
(ECF No. 51 at 4-9 (emphasis added).)
SUPPRESSION HEARING TESTIMONY
first witness at the Suppression Hearing was Major Jorge
Novas Medrano (“Novas”) of the Dominican Republic
Army. Novas testified as follows.
June 2015, Novas was an inspector in the Dominican Republic
Army's J-2 unit, which is responsible for intelligence.
Novas supervised J-2 operations in a certain ...