United States v. O'Neal

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS

          WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE

         Defendant 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 30, 2018.

         Although 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.

         To 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.

         The 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.

         I. BACKGROUND

         O'Neal 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.

         According 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:

         A. Statements on June 7, 2015, Outside the Santiago Airport

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, ^[1] 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 area.

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.”

         B. Statements on June 7, 2015, in the Office at the Santiago Airport

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 was locked.

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 airport.

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 drive.

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 uniform.

500. 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 themselves.

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 questioning.

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 hour.

At one point, Ms. O'Neal noticed that the female officer was taking pictures of her with a cell phone while smiling and laughing.

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 and Morales.

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 small office.

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).)

         II. SUPPRESSION HEARING TESTIMONY

         A. Novas Medrano

         The first witness at the Suppression Hearing was Major Jorge Novas Medrano (“Novas”) of the Dominican Republic Army. Novas testified as follows.

         As of 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 ...