United States v. Chief
| Decision Date | 08 May 2020 |
| Docket Number | No. 18-CR-2980 MV,18-CR-2980 MV |
| Parties | UNITED STATES of America, Plaintiff, v. Branquileno CHIEF, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Nicholas James Marshall, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.
THIS MATTER is before the Court on Defendant Branquileno Chief's Motion to Compel Polygraph Data. Doc. 61. The government responded. Doc. 69. Mr. Chief did not reply. Having considered the motion, the relevant law, and being otherwise fully informed, the Court finds that the motion is well-taken in part and will be GRANTED in part.
Mr. Chief is charged in a one-count indictment with Assault of a Minor Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153, and 3559(f)(3). Doc. 2. The charge stems from his alleged assault of his four-month-old daughter, S.C., in Indian Country on May 6, 2017. See Doc. 69 at 1. Mr. Chief was first interviewed by law enforcement 12 days after the alleged incident and denied any wrongdoing. See Doc. 34 at 2–3. He was next interviewed almost a year later, on March 9, 2018, and again denied assaulting S.C. Id. at 3. Then, on July 11, 2018, Mr. Chief agreed to submit to a polygraph examination conducted by Federal Bureau of Investigation (FBI) Special Agent (SA) Marcus McCaskill at the Ramah-Navajo prosecutor's office in Gallup, New Mexico. Id. SA McCaskill asked Mr. Chief two questions during the examination: (1) "Did you hit [S.C.]?" and (2) "Do you know for sure who hit [S.C.]?" See id. Ex. 9 at 1 ("Polygraph Report"). Mr. Chief responded "no" to both questions, but SA McCaskill found the responses to indicate deception. See id.
SA McCaskill then conducted a recorded post-test interview during which he confronted Mr. Chief with his apparently deceptive responses. See Doc. 69 at 2. Mr. Chief initially continued to deny wrongdoing but eventually admitted that he had gotten angry with S.C. on the day in question and "shoved a toy into her mouth." Polygraph Report at 2. At SA McCaskill's suggestion, Mr. Chief then wrote a signed statement about the incident, which reads:
Hi I'm Branquileno Chief I was in the room with [S.C.] while [my girlfriend] was cooking then [S.C.] was on the bed she started to fus [sic] then it got to me while I was lighting the sent [sic] then she got more fussy then I grab a toy and shuvd [sic] to into her mouth.
Polygraph Report at 3. Upon reading the statement, SA McCaskill asked Mr. Chief if he wanted to add an apology for lying to the FBI investigators, which Mr. Chief subsequently added. See id. at 2. The investigators then continued to question Mr. Chief about other injuries that S.C. had apparently suffered prior to the incident on May 6, 2017. See id. at 3. In response, Mr. Chief eventually stated that he had "squeezed [S.C.] very hard on another occasion when he was angry." Id. He then prepared and signed another written statement to that effect, again at SA McCaskill's suggestion. See id.
On May 31, 2019, Mr. Chief filed a motion to suppress his statements during the post-test interview. See Doc. 25. He asserts several grounds for suppression in the motion, including that the "manner in which the agents interrogated [him]" and his "mental condition at the time of the interrogation" rendered his statements involuntary. See id. at 2. In support, Mr. Chief points to his "very limited intellectual capacities," his "naivete," and the fact that he is "almost illiterate." See id. at 11. In response, the government asserts that the confessed statements were voluntary. See Doc. 34 at 11–13.
Mr. Chief then filed the instant motion to compel on February 7, 2020 while awaiting a hearing on his motion to suppress. See Doc. 61. He represents that in November 2018 and January 2019, the government provided him with several documents in discovery related to the polygraph examination, including an audio recording of the post-test interview and a transcript of the examination itself. See id. at 3. The government also provided Mr. Chief with the polygraph examination report prepared by SA McCaskill. See Doc. 69 at 6. Mr. Chief further represents, however, that on February 4, 2020, the Assistant United States Attorney (AUSA) assigned to this case informed defense counsel that there are documents related to the polygraph examination that have not been disclosed in discovery due to the FBI's position that they are proprietary. See Doc. 61 at 4. He now moves the Court to order the disclosure of those documents, including: (1) all electronic data as recorded by SA McCaskill and/or any other agents of the government during Mr. Chief's polygraph examination; and (2) all polygraph examination worksheets; notes; and "any other documents pertinent to FBI procedures, usages, and wonts related to polygraph examinations." See id. at 1. Mr. Chief argues that he is entitled to the requested documents under Rule 16 of the Federal Rules of Criminal Procedure because "[a]llowing a defense expert to review whether the results of the polygraph actually support a failed test is material to evaluating the voluntariness of [his] purported confession." See id. at 8–9. Mr. Chief has retained an expert polygrapher to review the documents if disclosed and testify at the upcoming suppression hearing. See Doc. 69 at 3.
The government makes several arguments in response. See id. First, it argues that there is no indication that SA McCaskill used the polygraph examination as a "ruse" to coerce Mr. Chief into confessing, and that Mr. Chief "has everything needed to review how SA McCaskill conducted his interview." Id. at 5–6. Next, the government argues that the requested information is not "material" within the meaning of Rule 16 because the polygraph results cannot be admitted as evidence at trial and are therefore not part of the government's case-in-chief. See id. at 6. Last, the government argues that Mr. Chief's claim that the polygraph data may be exculpatory is too speculative and does not establish materiality absent a "factual basis strongly indicating [his] expert would read the tests and data differently." Id. at 7 (citing United States v. King , 928 F. Supp. 1059, 1063 (D. Kan. 1996) ).
The government additionally requests that if the Court were to order a review of the undisclosed discovery, the review take place at the FBI's office in Albuquerque and "be subject to a protective order that would seek to prevent any accidental disclosure of protected testing protocols and procedures." Doc. 69 at 7. Mr. Chief does not object to the Court placing the requested materials under a protective order but argues that requiring the review to take place at the FBI office would be "unduly burdensome, expensive, and inefficient" because his experts do not reside in New Mexico. See Doc. 61 at 10.
There is no general constitutional right to discovery in a criminal case. See Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). The government, however, must make the disclosures required by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and by the Federal Rules of Criminal Procedure.
Rule 16 of the Federal Rules of Criminal Procedure provides in pertinent part that "[u]pon a defendant's request, the government must permit the defendant to inspect and to copy" documents "within the government's possession, custody, or control" if "(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Fed. R. Crim. P. 16(a)(1)(E). Items that fall under the purview of Rule 16 include "books, papers, documents, data, photographs, tangible objections, buildings or places." Id. Rule 16 also extends to "the results or reports of any physical or mental examination and of any scientific test or experiment." Id. at (a)(1)(F).
A defendant is presumptively not entitled, however, to "the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case" or material covered by the Jencks Act. Fed. R. Crim. P. 16(a)(2). See also 18 U.S.C. § 3500. An agent's notes may nevertheless be discoverable under Brady if they are exculpatory and material as well as under the Jencks Act if they constitute the "statements" of testifying witnesses. United States v. Lujan , 530 F. Supp. 2d 1224, 1265 (D.N.M. 2008) (citations omitted).
The Supreme Court has explained that, in the context of Rule 16, evidence "material to preparing the defense" refers specifically to evidence that responds "to the Government's case in chief" rather than simply any evidence that might ultimately prevent a conviction. United States v. Armstrong , 517 U.S. 456, 462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). See also Lujan , 530 F. Supp. 2d at 1234 (). Given this definition of materiality, nothing in Rule 16 or Armstrong conflicts with the government's obligation under Brady and its progeny. See, e.g. , Smith v. Cain , 565 U.S. 73, 132 S. Ct. 627, 630, 181 L.Ed.2d 571 (2012) (). For purposes of Rule 16(a)(1)(E)(i), materiality "means more than that the evidence in question bears some abstract logical relationship to the issues in the case." See United States v. Burger , 773 F. Supp. 1419, 1424 (D. Kan. 1991) (citation omitted). Rather, "there must be some indication that the pretrial disclosure of the disputed evidence would have...
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