United States v. Martinez

122 F.4th 389

Opinion

Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 19, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 23-2193 No. 24-2002 No. 24-2004

SANTIAGO MARTINEZ,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:21-CR-01934-MV-1) _________________________________

C. Paige Messec, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant.

Violet N. D. Edelman, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee. _________________________________

Before PHILLIPS, CARSON, and FEDERICO, Circuit Judges. _________________________________

FEDERICO, Circuit Judge. _________________________________ Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 2

This Government appeal arises out of a pending murder prosecution in

New Mexico currently in the pretrial phase. In the early hours of November

13, 2021, DeAnna Suazo suffered an untimely death outside her home on the

Taos Pueblo, where she was discovered underneath her running vehicle with

signs that she had been run over. A week later, following a “failed” polygraph

test, her boyfriend, Santiago Martinez, made statements indicating that he

pushed Suazo to the ground in front of her vehicle and then ran her over with

it.

Martinez was indicted by a grand jury in the United States District of

New Mexico on one count of second-degree murder in Indian Country in

violation of 18 U.S.C. §§ 1111(a) and 1153. Several pretrial motions were

adjudicated before the district court and are now before us in three separate

appeals, which we consolidated into one.

First, Martinez filed a motion to suppress statements that he made to a

Federal Bureau of Investigation (FBI) agent during a post-polygraph

interview. The district court granted the motion and suppressed the

statements. The Government now appeals this decision in case number 23-

2193.

Second, the Government filed a motion in limine seeking a pretrial

determination on the admissibility of certain text messages exchanged

between Suazo and Martinez prior to Suazo’s death. These messages, spanning

2 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 3

the six months before her death, are purported to be evidence that Suazo was

unhappy with their relationship and wanted to end it. The Government argued

that these messages were not hearsay per Federal Rule of Evidence (Rule)

801(c)(2), as they were not offered for the truth of the matter asserted but

rather to show their effect on Martinez as the listener. The district court ruled

these text messages inadmissible at trial. That decision is now on appeal in

case number 24-2002.

Third, the Government sought an in-limine ruling that the witness

testimony of a prior incident in which Martinez assaulted and acted violently

toward Suazo would be admissible at trial as “other crimes, wrongs, or acts”

under Rule 404(b). Again, the district court disagreed with the Government

and issued an order excluding this evidence from trial, a decision now before

us on appeal in case number 24-2004.

In this interlocutory appeal, we have jurisdiction under 18 U.S.C. § 3731.

Considering the record and arguments in full, we reverse and remand for

further proceedings consistent with this opinion.

3 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 4

I

A1

On November 12 and 13, 2021, Suazo and her boyfriend of 10 years,

Martinez, both of whom were 29 years old, were at their residence in Taos

Pueblo, New Mexico. After Suazo and Martinez went grocery shopping

together the evening of the 12th, Suazo prepared dinner at their home, and

they ate between approximately 5:00 and 6:00 p.m. After dinner, Martinez

played video games while Suazo, a noted artist, worked on her artwork. That

evening and into the morning of the next day, they consumed alcohol and

smoked marijuana together.

According to Martinez’s original account of the events, at some point they

took a break from their respective activities to sit in Suazo’s vehicle to listen

to music, as there was no music system inside the house. Suazo sat in the

driver’s seat and Martinez sat in the passenger seat. They continued drinking

alcohol inside the vehicle. Martinez stated that there was no one else at the

residence or in the area.

1 The facts in this section are allegations from the criminal complaint

and are recited here for background purposes. We emphasize that Martinez is presumed innocent of the charge in the indictment unless or until a jury finds the Government has proved him guilty beyond a reasonable doubt. Agnew v. United States, 165 U.S. 36, 51 (1897). 4 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 5

Per Martinez, in the early hours of November 13, he exited the vehicle

and went inside the house to add wood to a fire. He was uncertain how long he

had been inside due to his level of intoxication. Upon returning outside at

around 3:30 a.m., he found Suazo’s vehicle running and Suazo unresponsive on

the ground near the front driver’s side tire of the vehicle. Because, as Martinez

reported, the front tire was against Suazo’s head and on her arm, he moved the

vehicle to free her arm from under the tire.

Martinez did not call 911; instead, he called members of his and Suazo’s

families to tell them she was deceased. Family members arrived at the scene

and performed CPR on Suazo, while another family member called emergency

services. Local police from the Taos Pueblo Department of Public Safety and

paramedics initially responded to the scene. After assessing the situation, local

police contacted the FBI, who arrived to assist. Paramedics transported Suazo

to the hospital, where she was pronounced dead upon arrival.

Law enforcement officers observed significant injuries to Suazo’s body,

including some injuries consistent with being run over by a vehicle. Law

enforcement also observed (1) the driver’s side door of the vehicle was open, (2)

a dark, dried red substance near the inside driver’s side door handle, and (3)

wet spots on the dirt outside the driver’s front and rear doors. Additionally,

one witness interviewed by law enforcement at the scene described Suazo and

Martinez’s relationship as “toxic.” Aplt. App. I at 35.

5 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 6

Martinez told investigators at the scene that he and Suazo had never

been in a physical altercation and that he did not know how Suazo ended up

under her vehicle. When speaking with Martinez, officers observed a fresh cut

on the knuckle of his right index finger, abrasions on his arms, hands, and

elbows, and blood on his sweatshirt.

B2

When speaking to FBI agents at the scene the morning of November 13,

2021, Martinez volunteered to take a “lie detector test.” Aplt. App. II at 32.

Over a week later, on the morning of November 22, 2021, two FBI agents,

Mariana Manachi and Michelle Cobb, went to Suazo’s great-aunt’s house to

follow up on Martinez’s offer and speak with him. Suazo’s family members, as

well as Martinez and his parents, were there assisting with cleaning the house

and managing affairs following Suazo’s funeral. The two agents asked to speak

with Martinez at the Taos Police Department, to which he agreed.

Martinez and his parents drove together to the Taos Police Department,

arriving separately from the agents. Upon arriving, the three were escorted to

a room specifically arranged to provide a private space for discussion. Inside

2The facts in this section are derived from testimony and exhibits presented at a suppression hearing before the district court. 6 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 7

the room were Martinez, his parents, and two FBI agents, including Agent

Cobb.

A 10-to-15-minute discussion ensued, during which the two agents

sought Martinez’s cooperation in answering additional questions. In keeping

with their practice of conducting one-on-one interviews, the agents requested

to speak with Martinez individually. They also presented to Martinez the

option of taking a polygraph test, clarifying that it was not mandatory.

Martinez’s parents encouraged him to cooperate, and he agreed, stating he

would “do whatever.” Id. at 26. His parents then left the room, returning to the

lobby area to allow the agents to chat privately with Martinez. The agents did

not explain to Martinez’s parents how long the interview would take.

Once alone in the room with Martinez, the two agents began recording

their conversation with him at approximately 10:26 a.m. After asking some

questions about the events of November 12 and 13, Agent Cobb inquired into

whether Martinez was still willing to take a polygraph test, suggesting that it

could “clear [his] name quickly.” Aplt. App. I at 191. Martinez consented,

stating, “If that’s what I need to do, then I’ll do it.” Id. During this conversation,

neither agent mentioned the possibility of a post-polygraph interview. The

recording was turned off at approximately 10:32 a.m.

7 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 8

Martinez was escorted to a different room for the administration of the

polygraph test, where Special Agent Donna Coyle had set up the polygraph

machine. This room was located down the hall from the original room within

the police station and featured a one-way mirror. The room measured

approximately 10-by-20 feet, containing one table and two chairs. Only Agent

Coyle and Martinez were inside this secondary room, while Agent Cobb

observed from the other side of the one-way mirror and was able to see and

hear into the room without being perceived.

Agent Coyle then began recording her conversation with Martinez at

approximately 10:34 a.m. She introduced herself and informed him that, before

beginning, she would advise him of his rights and must obtain his consent to

proceed with the polygraph test. She advised him: “I want to make sure that

you know that you’re not in custody . . . and you’re here on your own free will.”

Id. She further explained that although “it might feel like . . . [he] [could not]

go anywhere,” he was “free to leave at any time during [the] test.” Id. at 192.

Agent Coyle customarily informs individuals of their Miranda rights before a

polygraph test, irrespective of whether they are in custody.

She then read aloud a standard “advice of rights” form from a computer

screen, which provided:

8 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 9

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions.

You have the right to have a lawyer with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

Id. at 56, 192–93. Martinez confirmed that he understood his rights, did not

have any questions, and electronically signed the form containing this advice

of rights.

Agent Coyle then proceeded to read aloud a polygraph consent form,

again from a computer screen, which provided:

AFFILIATION

Before we begin an examination by means of the polygraph in connection with:

the death of Deanna Suazo

you must understand your rights.

YOUR RIGHTS

You have the right to refuse to take the polygraph test. 9 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 10

If you agree to take the polygraph test, you have the right to stop the test at anytime.

If you agree to take the polygraph test, you have the right to refuse to answer any individual question.

WAIVER AND CONSENT

I have read this statement of my rights and I understand what my rights are. I voluntarily agree to be examined by means of the polygraph during this interview. I understand and know what I am doing. No threats or promises have been used against me to obtain my consent to the use of the polygraph.

I understand that the polygraph examination may be monitored or recorded.

I understand that any attempt to affect the results of the polygraph examination by intentionally manipulating any physiology, regardless of motivation, will be construed as a polygraph countermeasure. Furthermore, I understand that such attempts, or failure to follow the examiner’s instructions, will be deemed as purposeful non- cooperation.

With the above understanding, I agree to submit to a polygraph examination.

Id. at 57, 193. Agent Coyle asked Martinez to read the bolded language aloud,

which he did. He did not have any questions about the rights listed in this form

and indicated his affirmance by electronically signing it. Martinez reviewed

both forms on a computer screen and was not provided with a paper copy of

either. The recording was turned off at approximately 10:41 a.m.

10 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 11

Agent Coyle proceeded to administer an unrecorded pre-polygraph

interview, which lasted approximately an hour and a half. During the pre-test

interview, Agent Coyle asked Martinez various administrative questions about

his background, including health, education, and employment, described what

the polygraph would entail, and conducted a practice round. She also said,

“something to the effect of, ‘if you don’t do well, then we will discuss that at the

end.’” Aplt. App. II at 95. When Agent Coyle finished the pre-test interview,

she offered Martinez the opportunity to use the restroom.

After Martinez returned unescorted from the restroom, Agent Coyle

began the polygraph, which lasted between thirty minutes and an hour. She

administered two sets of questions to Martinez. Each set could yield one of

three possible results: no deception indicated, inconclusive, or deception

indicated.

In the first set, Agent Coyle asked, “Did you do anything to harm

De[A]nna that night?” and “Did you participate in harming De[A]nna that

night?” Aplt. App. I at 47, 147. The results were inconclusive as to Martinez’s

truthfulness. Agent Coyle then modified her questions for the second set,

asking instead, “Did you do anything to injure De[A]nna that night?” and “Did

11 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 12

you participate in injuring De[A]nna that night?” Aplt. App. I at 47, 147. This

time, the results indicated deception in Martinez’s responses.

Upon Martinez “failing” the second part of the test, Agent Coyle

immediately launched into a post-test interview, turning the recorder back on

before she began questioning him. This post-test interview lasted

approximately three hours. Agent Coyle began by stating: “So it’s completely

clear that you weren’t being honest with me today. . . . [Y]ou didn’t pass the

test today. . . . So what we need to talk about is what happened to DeAnna.

Okay?” Aplt. App. I at 225. She recognized that he was in a “scary” and “awful”

situation and encouraged him to tell the truth out of love for Suazo and her

family. Id.

Despite Agent Coyle’s persistent questioning into what happened the

night Suazo died, Martinez repeatedly stated that he did not remember. But

he also made several admissions. He admitted: “we probably did argue,” that

“[Suazo] told me a couple times that she didn’t want to be with me,” and “I hurt

her . . . so bad that I couldn’t even get her back, and it’s my fault.” Id. at 234,

236, 239. He also mentioned that he would tell her parents “[t]hat it was an

accident,” and “I’m taking responsibility that your daughter is . . . gone because

it was just us two, and who else to blame but me.” Id. at 237. As to remembering

the details, he professed, “I’m still thinking, and I’m going to own up to it.” Id.

12 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 13

Agent Coyle repeatedly told Martinez that he was a good person, that good

people make mistakes, and that he would eventually take responsibility and

be forgiven.

Approximately an hour and fifty minutes into the post-test interview,

Martinez had not provided any specific information about what had happened

to Suazo. At that point, Agent Coyle said, “I’m seeing right through you. . . .

I’m seeing through your crap.” Id. at 242. She told Martinez that he was

“completely bullshitting” and he should not “bullshit [her] anymore.” Id.

Martinez then provided specifics, explaining that “[w]e were together in

the car, drinking, being together, and it just went south.” Id. He continued,

“[w]e were arguing” and “I didn’t like what she said,” because “she didn’t want

to be with me,” so “I took it the wrong way and hurt her.” Id. While they were

arguing, he stated she was yelling at him “to stop and to calm down” and

“[k]ept telling me to go to sleep . . . .” Id. at 244. He went on, “me being foolish

and drunk, I didn’t listen to her,” and “that’s when it happened.” Id. He was

“mad” and “didn’t want her to leave,” so he “pushed her,” causing her to fall on

the ground in front of her vehicle. Id. at 242–43. At that point, “angry” and “not

thinking,” he “got in the car and pressed on the gas” and “hit her,” after which

he went back inside the house. Id. at 243–44.

Agent Coyle wanted Martinez to start from the beginning, repeat what

happened, and be specific, so he recounted again:

13 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 14

[We] [c]ame back home. . . . We ate dinner. She cooked for me. . . . We were eating. . . . We were playing games. She was working. She wanted to play so we started playing together. We were playing for a couple hours because . . . we play a long time on there. Got her music out, her little speaker. We kept playing and drinking. I was in and out. We decided to go outside together to go into her car and continue drinking and listening to music. So we both went out there. We went out there together. We got in her car. We were sitting in there for a long time, talking back and forth. And that’s when we started to argue about how things weren’t going right or how it -- we wanted to -- how I wanted it to. We started arguing, and I must have switched seats or I went out to the other side, onto the driver’s side. We were arguing. Things got out of hand. I -- I pushed her, got on her side, accidentally pressed on the -- on the gas, and I hit her. . . . I felt her. . . . I got out. She was still laying there. I didn’t do anything. I was in shock. I didn’t want to believe what happened just happened. And that’s when I went inside, went inside to my house, did whatever I was doing, went in there, checked on how I was putting wood . . . and then . . . went back out and found her like that. And me not putting two and two together that -- that I did it on accident, I didn’t want to believe when I found her.

Id. at 245.

At the end of the post-test interview, Agent Coyle gave Martinez some

snacks, checked to see if he had enough water, and offered him another

opportunity to use the restroom. Martinez asked “when [he would] be able to

go,” to which Agent Coyle responded that she needed to “talk to the case agent

real quick.” Id. at 247. Agent Coyle then asked Martinez if he wanted to write

a statement describing what had happened the night of Suazo’s death. When

he declined, Agent Coyle left the interview room to allow him to reconsider.

When she returned, Martinez repeated that he did not want to write a

14 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 15

statement. Shortly thereafter, Agent Cobb entered the interview room and

arrested him. Martinez stated that he thought he was going home. The entire

process – from when Martinez was first read his Miranda warnings to the

conclusion of all interviewing – took approximately six hours.

C3

The FBI also undertook additional steps as part of its investigation into

DeAnna’s death. On November 19, 2021, law enforcement executed a search

warrant on Martinez’s cell phone. The cell phone data indicated that between

July 18 and November 12, 2021, Martinez exchanged 924 text messages with

Suazo. The messages included multiple exchanges in which Suazo expressed

her desire to end their relationship.4

On July 18, 2021 (118 days before Suazo’s death), Suazo sent the

following text messages to Martinez:

Suazo Martinez I am honestly over us. I don’t want to spread your birthday with you. I would rather much break up before this weekend. I don’t want to be in this relationship as a mentioned a whole bunch of times. I don’t think we’re moving

3 The facts in this section are drawn from three pretrial motions filed by

the Government before the district court.

4 We adopt the Government’s format for presenting the text messages

and do not include any [sic] notations in any of the messages despite potential errors. 15 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 16

forward, I think the both of us are growing apart. *spend*

Aplt. App. I at 131. He did not respond via text message.

On July 23, 2021 (113 days before Suazo’s death), Suazo and Martinez

exchanged the following text messages:

Suazo Martinez I’m done.

We’re done I’m walking back home Already told my parents Ok so you told we’re officially done? Because we are. That you got all hurt because I was smoking a cigarette

Id. at 132.

On August 28, 2021 (77 days before her death), Suazo and Martinez

Suazo Martinez Your sister and I tried helping you out and you denied that so… night Stop calling me with threats Walking home I’m outside

Id.

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On September 9, 2021 (65 days before Suazo’s death), Suazo sent

Martinez this lengthy text message, to which Martinez responded the following

day:

Suazo Martinez I am officially breaking up with you. I would say this in person or even a call, but your aggressive behavior makes me tell you this via text. You can’t handle your drink, you go above your limit each time and I end up as “the bad person” for trying to help you monitor your drinking. It’s not fun anymore, it’s a huge burden and I’m past those days. We both have better things and responsibilities to take care of.

Also, it’s really lame that you try to cheat with much younger females, aka it’s against the law. I can’t help you or be by your side defending you anymore. Take care of yourself before taking care of others. Also seek the help you need through the people you love in your fam. I’m stepping away. We’re on our way now babe I love you so much and can’t wait to be there with you [heart emoji] be careful on your way down

Id. at 132–33.

On September 26, 2021 (48 days before Suazo’s death), Suazo and

Martinez exchanged these text messages:

17 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 18

Suazo Martinez I have it, we are done broken up!

I offered my help all night into the morning and YOU decided to deny that. It’s not my fault that you can’t handle your alcohol, you didn’t want to leave with me last night, when I was practically begging you Whatever I walked all this morning We’re done. I’m not going to argue with someone who doesn’t appreciate me. I’m blocking you. Whatever go ahead I’ve been trying to reach you all night Sure you did. Look at all my texts to you!?! Ok, fine, we’re done. Im done putting up with you and your behavior. I don’t need this or you. You’d be the same damn way Whatever Yeah you don’t need me Yea I don’t. Bye. Obviously you didn’t care last night Bye! Uh huh sure you didn’t fucking care So bye I’m done arguing to a brick wall. Bye. We’re done. Yeah helped by me walking this morning Drive safe, and I’ll get my stuff out this week.

18 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 19

Yeah I’ll take it out I don’t need your aggression, I’ll do myself and be out of your way.

Id. at 133–34.

On November 5, 2021 (eight days before Suazo’s death), Suazo and

Martinez exchanged the following text messages:

Suazo Martinez I’m not saying this because I’m mad. I’m saying this because it’s how I’ve been feeling for a long time now. We really need to take time from each other. I’m not in the right place to be in a relationship with you. I’m sorry [Suazo] all I asked was to tie my hair. I’ll learn how so you don’t have to worry. Not going to argue about this and if you don’t want to stay around me then you don’t have to. It’s not about your hair, it’s about how we argue or get mad at every little thing. It’s not just me but it’s also you too.

I’m not happy anymore. Even when we try to have fun usually something happens between us, and that reinsurers that I’m not happy. I wasn’t the one getting mad this morning. We’ll if your not happy then It’s both of our attitudes, when I helped you find your phone you could have said “thank you.”

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Instead you just walked out of the house.

I need time to work on my priorities, my work and school. Being around you everyday prevents me from doing that. I know my attitude is bad and I’m going to work on controlling it. Sorry I didn’t say anything cause I was already 20 minutes late. Okay I understand that, if I prevent you then shouldn’t be with me. I’m sorry [Suazo]

Id. at 134.

Lastly, on November 5, 2021 (seven days before Suazo’s death), Suazo

and Martinez exchanged the following text messages:

Suazo Martinez This photo makes it very clear for me to end this relationship. You pretended to be single around this time last year. Now you can have what you really wanted, being single.

[Suazo attached a photo of a screenshot of Martinez’s phone in which Martinez received a sexual picture of another female] There’s a cop up here. Going next door. I don’t think that was the cops looked like my uncles brown truck.

Id. at 174.

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Additionally, FBI agents interviewed friends and family of Suazo and

Martinez following Suazo’s death. From these interviews, the Government

learned from multiple witnesses of an incident approximately eleven months

before Suazo’s death, where Martinez pinned her down and strangled her to

prevent her from leaving his home. According to the witnesses, Martinez’s

parents had to intervene to help Suazo escape.

II

On December 21, 2021, a grand jury in the United States District of New

Mexico returned an indictment charging Martinez with one count of second-

degree murder in Indian Country, in violation of 18 U.S.C. §§ 1111(a) and 1153.

He pleaded not guilty at an arraignment held on December 30, 2021.

In anticipation of trial, the parties filed pretrial motions. On March 1,

2023, Martinez filed a motion to suppress the statements he made during the

post-polygraph interview. Therein, Martinez argued that law enforcement

should have re-Mirandized him before the post-polygraph interview,

contending that the initial Miranda advisement given prior to the polygraph

was insufficient for the subsequent interrogation because he was unaware

there would be additional questioning at the end of the polygraph test.

On March 21 and May 2, 2023, the Government filed two related motions

in limine to admit into evidence seven text message exchanges between Suazo

21 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 22

and Martinez in which Suazo discussed breaking up with Martinez. The

Government argued they were seeking to admit the messages for a non-

hearsay purpose in compliance with Rule 801(c)(2), as they were not being

offered for the truth of the matter asserted – that Suazo actually intended to

break up with Martinez – but for their effect on Martinez, the recipient.

Specifically, the messages were intended to demonstrate, amongst other

things, Martinez’s belief that Suazo wanted to end their relationship, thereby

providing him with a motive for murder.

On April 3, 2023, the Government filed a notice of intent pursuant to

Rule 404(b) seeking to elicit witness testimony of a prior instance of physical

abuse perpetrated by Martinez against Suazo.

The district court held a hearing on the motions on October 26, 2023. In

three separate written orders, issued on November 30, December 5, and

December 7, 2023, the district court granted Martinez’s motion to suppress and

denied the Government’s motions.

The Government now appeals those rulings in this interlocutory appeal.

“An appeal by the United States shall lie to a court of appeals from a decision

or order of a district court suppressing or excluding evidence . . . in a criminal

proceeding,” provided “the defendant has [not] been put in jeopardy and before

the verdict or finding on an indictment or information,” so long as “the United

States attorney certifies to the district court that the appeal is not taken for

22 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 23

purpose of delay and that the evidence is a substantial proof of a fact material

in the proceeding.” 18 U.S.C. § 3731. Here, the Government filed three separate

notices of appeal, challenging each of the aforementioned written orders by the

district court. For each notice of appeal, the United States Attorney certified

that “this appeal is not taken for purpose of delay and that the excluded

evidence is a substantial proof of a fact material in this proceeding.” Aplt. App.

II at 266–68. Accordingly, we have jurisdiction to review these timely appeal.

III

We now turn to whether the district court erred in excluding as evidence

in Martinez’s impeding trial: (1) his post-polygraph statements to the FBI, (2)

text messages between Suazo and Martinez in which she discussed ending

their relationship, and (3) witness testimony of a prior act of violence

perpetrated by Martinez against Suazo.

A

First, the Government argues that the district court erred in suppressing

Martinez’s post-polygraph statements by ruling that Martinez had been

“constitutionally entitled to a new advisement of his Miranda rights prior to

the post-test interview.” Op. Br. at 18 (quoting Aplt. App. II at 246).

Specifically, the Government contends that Martinez validly waived his Fifth

Amendment privilege to remain silent before the polygraph, there was no

23 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 24

significant change in circumstances that would have required re-Mirandizing

him before the post-polygraph interview, and that his confession was

voluntarily made. According to the Government, the district court misapplied

the totality of the circumstances test, as none of the factors identified by the

district court justified the suppression of Martinez’s statements.

We review de novo the legal question of whether the defendant

voluntarily, knowingly, and intelligently waived his Miranda rights. United

States v. Burson, 531 F.3d 1254, 1256 (10th Cir. 2008). Moreover, we review

the district court’s underlying factual findings for clear error. United States v.

Warrington, 78 F.4th 1158, 1166 (10th Cir. 2023). We will reverse a district

court’s findings of fact “only if they are without factual support in the record”

or if we, “considering all the evidence, [are] left with a definite and firm

conviction that a mistake has been made.” United States v. Cortes-Gomez, 926

F.3d 699, 708 (10th Cir. 2019). As a court reviewing the record on appeal, we

must consider the evidence adduced at the suppression hearing in the light

most favorable to the prevailing party, here, Martinez. United States v. Young,

964 F.3d 938, 942 (10th Cir. 2020).

The Fifth Amendment to the United States Constitution guarantees that

“[n]o person . . . shall be compelled in any criminal case to be a witness against

24 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 25

himself . . . .” U.S. Const. amend. V. Whenever a question arises regarding the

validity of a defendant’s waiver of their right against self-incrimination, the

issue is governed by this portion of the Fifth Amendment.

In Miranda v Arizona, the Supreme Court explained that an individual’s

Fifth Amendment privilege against self-incrimination is “jeopardized” when

they are in custody and subjected to questioning. 384 US 436, 478 (1966). Thus,

the Court held that “the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” Id. at 444. That is, a person

subject to custodial interrogation must be given specific rights advisements

and warnings designed to safeguard their Fifth Amendment rights. Id. at 444–

45.

A proper Miranda warning does not require magic words. Duckworth v.

Eagan, 492 U.S. 195, 202–03 (1989) (“We have never insisted that Miranda

warnings be given in the exact form described in that decision.”). Rather, the

warning must reasonably inform an individual in custody of the following: (1)

the right to remain silent, (2) that any statement may be used against them in

court, (3) the right to have an attorney present during questioning, and (4) the

right to have an attorney appointed if they cannot afford one. Id.

25 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 26

Law enforcement officials are not required to issue Miranda warnings to

every person they arrest or question – only those subject to “custodial

interrogation.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). A

suspect is “in custody” for purposes of Miranda when placed under formal

arrest or when a reasonable person in the suspect’s position would have

understood the situation to constitute a “‘restraint on freedom of movement’ of

the degree associated with a formal arrest.” California v. Beheler, 463 U.S.

1121, 1125 (1983) (quoting Mathiason, 429 U.S. at 495). Further,

“interrogation” refers not only to express questioning but also to any words or

actions on the part of the police – other than those normally attendant to arrest

and custody – that the police should know are reasonably likely to elicit an

incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291,

301 (1980).

The defendant bears the initial burden of establishing they were subject

to custodial interrogation. United States v. Davis, 792 F.2d 1299, 1309 (5th Cir.

1986) (holding that the defendant “ha[s] the burden of proving that he was

under arrest or in custody”); United States v. Jorgensen, 871 F.2d 725, 729 (8th

Cir. 1989) (same); United States v. Woodson, 30 F.4th 1295, 1302 (11th Cir.

2022) (same). Once the defendant establishes a prima facie case of custodial

interrogation, the burden shifts to the Government to establish by a

preponderance of the evidence that any waiver of the defendant’s Fifth

26 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 27

Amendment privilege comported with the requirements of Miranda and its

progeny. Miranda, 384 U.S. at 475. If the defendant did not voluntarily,

knowingly, and intelligently waive their rights, Miranda prevents statements

obtained during a custodial interrogation from being used at trial. Id. at 471–

73.

On appeal, the Government does not contest the district court’s legal

conclusion that Martinez was in custody during the post-polygraph interview.

Thus, primarily at issue is whether the Government has met its burden of

demonstrating that Martinez validly waived his Miranda rights in connection

with the post-polygraph interview.

“[A] suspect may waive [their] Fifth Amendment privilege, ‘provided the

waiver is made voluntarily, knowingly and intelligently.’” Colorado v. Spring,

479 U.S. 564, 572 (1987) (quoting Miranda, 384 U.S. at 444). To be voluntary,

the relinquishment must be the “product of a free and deliberate choice rather

than intimidation, coercion, or deception.” Id. at 573 (quoting Moran v.

Burbine, 475 U.S. 412, 421 (1986)).

To be knowing and intelligent, the waiver “must have been made with a

full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it.” Id. (quoting Moran, 475 U.S. at

421). Put simply, the suspect must comprehend the meaning of the words in

27 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 28

the warning. Id. at 574. The “Constitution does not require that a criminal

suspect know and understand every possible consequence of a waiver of the

Fifth Amendment privilege.” Id. (emphasis added). Rather, they need only be

made aware of their options: (1) they “may choose not to talk to law

enforcement officers,” (2) “talk only with counsel present,” or (3) “discontinue

talking at any time.” Id.

Moreover, a waiver need not be expressly given; it may be implied if the

suspect understands their rights and engages in a course of conduct indicating

waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). In sum, a Fifth

Amendment waiver is only valid if the “totality of the circumstances . . . reveal

both an uncoerced choice and the requisite level of comprehension . . . .” Spring,

479 U.S. at 573 (quoting Moran, 475 U.S. at 421).

This appeal raises two questions: (1) whether a suspect’s signed waiver

provided in response to Miranda warnings given prior to a polygraph test –

without clear mention that a post-polygraph interview could follow – is limited

in scope to just the polygraph test; and (2) whether Miranda warnings given

before a polygraph test become stale or ineffective by the time of or during a

post-polygraph interview, such that the suspect should have been re-

Mirandized. We address each issue in turn.

28 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 29

The first issue concerns whether Martinez’s executed waiver of his Fifth

Amendment privilege was valid and, if so, whether it was limited in scope to

only the polygraph test, excluding the post-polygraph interview. In his motion

to suppress before the district court, Martinez challenged the validity of any

purported waiver of his rights, asserting he never voluntarily, knowingly, or

intelligently waived them. See Aplt. App. I at 54 (“Any waiver of Mr. Martinez’

Fifth Amendment rights was not knowing and voluntary based on the totality

of the circumstances.”).

Martinez’s challenge to the voluntariness of the signing and execution of

the rights advisement and waiver – i.e., that it resulted from intimidation,

coercion, or deception, Spring, 479 U.S. at 572 – cannot be credibly made.

There is no evidence, for example, that Agent Coyle committed or threatened

to commit any act of violence against Martinez,5 handcuffed or restrained him,

5 Involuntary confession cases offer useful insights on voluntariness. See,

e.g., Beecher v. Alabama, 389 U.S. 35, 36–37 (1967) (per curiam) (concluding confession involuntary where police held a gun to the suspect’s head and subsequently shot at him before extracting a confession); Payne v. Arkansas, 356 U.S. 560, 566–67 (1958) (concluding confession involuntary where the police threatened the suspect with mob violence); Brown v. Mississippi, 297 U.S. 278, 284–86 (1936) (concluding confession involuntary where suspects were brutally whipped and tortured until they confessed).

29 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 30

deprived him of food, water, or restroom breaks,6 or made any threats,

promises, or inducements to him7 in an effort to obtain the waiver of his rights.

That leaves us with the questions of whether his executed waiver was

knowing and intelligent, and whether it was limited in scope to only the

polygraph test. Id. Martinez asserted before the district court that his waiver

was not knowing and intelligent, in part, because the “Miranda warning that

[Agent] Coyle administered to [him] was a standard advice of rights and did

not indicate that he would be subject to a post-polygraph examination.” Aplt.

App. I at 54.

Recall that Martinez initially proposed and later voluntarily agreed to

undergo a polygraph test. Once in the polygraph-testing room, Agent Coyle

6 See, e.g., Culombe v. Connecticut, 367 U.S. 568, 622–23 (1961) (concluding confession involuntary where suspect was deprived of adequate food, rest, and human contact); Payne, 356 U.S. at 564, 567–68 (concluding confession involuntary where suspect was deprived of food for over 24 hours); Chambers v. Florida, 309 U.S. 227, 231, 238–41 (1940) (concluding confession involuntary where the suspect was held in extended detention without adequate food or rest).

7 See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991) (concluding confession involuntary where a government informant promised the suspect protection from physical harm in exchange for the confession); Lynumn v. Illinois, 372 U.S. 528, 533–34 (1963) (concluding confession involuntary where the police threatened the suspect with losing custody of her children and welfare benefits if she did not cooperate); Spano v. New York, 360 U.S. 315, 323–34 (1959) (concluding confession involuntary where police used the suspect’s close childhood friend, who was a police officer, to suggest that the officer would be fired if the suspect did not cooperate). 30 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 31

introduced herself, informed Martinez that she would advise him of his rights,

and told him that she needed his consent to proceed with the polygraph test.

She then read aloud a standard advice of rights form, which Martinez

confirmed he understood, had no questions about, and electronically signed.

The rights form advised Martinez of his Miranda rights and hit all the marks

Miranda and its progeny require. See Duckworth, 492 U.S. at 202–03.

Following the initial advisement of rights, Agent Coyle read aloud a polygraph

consent form, which Martinez also read a portion of aloud and then

electronically signed. At this point, Martinez had not been told explicitly that

there could be an interview after the polygraph test; however, he also had not

been assured that one would not occur.

To determine whether the waiver was knowing and intelligent, we

consider the totality of the circumstances, including the defendant’s “age,

experience, education, background, and intelligence,” amongst other

characteristics, to determine “whether [they] ha[d] the capacity to understand

the warnings given [to them], the nature of [their] Fifth Amendment rights,

and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S.

707, 725 (1979).

The focus of our inquiry is whether Martinez had the capacity to

understand the rights he was waiving, not whether he understood how the

interrogation would be conducted. Spring, 479 U.S. at 577 (“[A] suspect’s

31 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 32

awareness of all the possible subjects of questioning in advance of interrogation

is not relevant to determining whether the suspect voluntarily, knowingly, and

intelligently waived his Fifth Amendment privilege.”). Police are not required

to inform a suspect of what questions they plan to ask, how long the

questioning will take, who will be asking the questions, or any other specifics

for a waiver to be knowing and intelligent. In this context, an advice of rights

form is not required to “ma[k]e it clear to the [suspect] that [they are] not

merely taking a polygraph examination but [are also] going to be asked

questions about a specific offense under investigation.” United States v.

Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984).

Martinez does not argue that he did not have the capacity to understand

his options – i.e., (1) “choose not to talk to law enforcement officers,” (2) “talk

only with counsel present,” or (3) “discontinue talking at any time.” Spring,

479 U.S. at 574. Nor is there any allegation that he misunderstood the

consequences of speaking freely to law enforcement. As stated, not only were

his rights read to him, but he also read a portion of the polygraph rights

advisement aloud, stated affirmatively he understood his rights, and signed

the form to indicate his waiver of the rights listed. Thus, we conclude that

Martinez’s post hoc claim that he was unaware there was a possibility of

further questioning after the polygraph test did not affect his ability to

comprehend the meaning of the warnings he was given at the outset.

32 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 33

Still, if the officers or the rights advisement itself, implicitly or explicitly,

create the impression that the defendant’s Miranda rights apply only to certain

phases of questioning or under specific conditions, it could limit the scope of

the defendant’s valid waiver.

Martinez argues that at the time he was advised of these rights, he was

not informed that there could be a post-polygraph interview. Because he was

unaware of the possibility of additional questioning after the polygraph test,

he argues any valid waiver does not extend in scope to the post-polygraph

interview. The district court agreed and concluded that by signing the rights

advisement form, “Martinez did not knowingly and intelligently relinquish his

rights in connection with the post-test interview.” Aplt. App. II at 238 (emphasis

added).

This argument is unavailing for two reasons. First, neither Agent Coyle

nor the advisement of rights form suggested or indicated that Martinez’s Fifth

Amendment privilege could be invoked only during the pre-polygraph

interview or polygraph test. Second, “it would have been unreasonable for

[Martinez] . . . to assume that [he] would not be informed of the polygraph

readings and asked to explain any unfavorable result.”8 Wyrick v. Fields, 459

U.S. 42, 47 (1982) (per curiam).

8 Even if this language in Fields is dicta, we are “bound by Supreme

Court dicta almost as firmly as by the Court’s outright holdings, particularly 33 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 34

Accordingly, we hold that Martinez’s signed waiver of his Fifth

Amendment rights was voluntary, knowing, and intelligent and was not

limited in scope to only the polygraph test. The district court erred in

concluding otherwise.

Nevertheless, a valid initial waiver does not extend indefinitely. The

district court held that “Martinez was constitutionally entitled to a new

advisement of his Miranda rights prior to the post-test interview.” Aplt. App.

at 246. Because he was not provided with “renewed warnings,” “the post-test

interview was conducted in violation of Mr. Martinez’s Fifth Amendment

rights and, as a result, the content of the post-test interview, and all

statements made by Mr. Martinez” were suppressed by the district court. Id.

Here lies the heart of this appeal.

In certain circumstances, a suspect must be readvised of their Miranda

rights and reaffirm their waiver, as the warnings can become “stale” if

changing circumstances diminish their effectiveness. United States v.

Rodriguez-Preciado, 399 F.3d 1118, 1128–29 (9th Cir.), amended, 416 F.3d 939

(9th Cir. 2005). The Supreme Court, however, has rejected a per se rule

when the dicta is recent and not enfeebled by later statements.” United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2017) (quoting United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004)). 34 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 35

requiring a suspect to be readvised of their rights in specific situations, instead

favoring a flexible approach that focuses on the totality of the circumstances.

See Fields, 459 U.S. at 48–49 (per curiam) (rejecting per se rule requiring police

to readvise suspect of their rights before questioning them about the results of

a polygraph examination). Because it so closely aligns with the facts before us,

Fields deserves a closer look.

In 1982, the Supreme Court in Fields considered whether a defendant

needed to be readvised of his Miranda rights after completing a polygraph

examination. 459 U.S. at 46–47. Before initiation of the test, Fields received a

written consent document informing him of his Miranda rights, which he

waived in writing. Id. at 44. At the conclusion of the polygraph examination,

which took less than two hours, the examiner told Fields “there had been some

deceit, and asked him if he could explain why his answers were bothering him.”

Id. Fields then made several admissions, which he later sought to suppress.

Id. at 44–45. Fields is on-point, factually and legally, to this case.

In a per curiam decision, the Supreme Court held that the police did not

need to readvise Fields of his Miranda rights as he had continued to make a

voluntary, knowing, and intelligent waiver. See id. at 49. The Court concluded

Miranda warnings remain effective for subsequent questioning unless “the

circumstances change[] so seriously that [the suspect’s] answers no longer were

voluntary, or unless [the suspect] no longer was making a ‘knowing and

35 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 36

intelligent relinquishment or abandonment’ of [their] rights.” Id. at 47 (quoting

Edwards v. Arizona, 451 U.S. 477, 482 (1981)).

Accordingly, we apply a totality of the circumstances test when

determining whether a subsequent interrogation (whether in the polygraph

context or not) requires officers to readvise the suspect of their Miranda rights

and obtain a new waiver. See id. at 48. First, we ask whether – at the time the

initial Miranda warnings were provided – the defendant knew, understood,

and validly waived their rights and this waiver was not limited in scope. Id. If

so, we then consider whether anything occurred between the warnings and the

defendant’s statements that rendered the defendant unable to fully and

properly evaluate the effect of exercising or waiving those rights before making

a statement to law enforcement. See id. at 47.

Because we have already held that Martinez’s executed waiver of his

Fifth Amendment privilege was voluntary, knowing, and intelligent and was

not limited in scope, we must now consider whether circumstances changed so

significantly between his (a) initial waiver and the polygraph test and (b) the

post-polygraph interview that he was required to be re-Mirandized and provide

a new waiver before the post-polygraph interview.

Our court has yet to address which factors should be evaluated in making

this determination. We find several factors relevant to this inquiry: (1) the

passage of time between the initial rights waiver and the subsequent

36 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 37

interrogation, (2) any material changes in the location or environment between

the initial and subsequent interrogation, (3) whether the subject matter of the

questioning changed or shifted between the initial and subsequent

interrogation, (4) whether the suspect was made aware that follow-up

questions or another interrogation could occur, and (5) any other

circumstances suggesting that the effectiveness of the earlier Miranda

warning had diminished by the time of the subsequent interrogation.9

Passage of time. First, we consider the passage of time between the initial

waiver and the subsequent interrogation, including whether there were any

significant breaks or interruptions. As time elapses between an initial waiver

and a subsequent interrogation, a suspect’s ability to recall and understand

9 Other circuits have identified the following as the most significant factors to consider when determining whether a suspect who was Mirandized before a polygraph must be re-Mirandized before a post-polygraph interview: (1) who initiated the post-polygraph questioning, (2) whether the defendant has consulted with counsel, and (3) whether the signed waiver clearly specifies that it applies to post-polygraph questioning or only to the polygraph test. See United States v. Leon-Delfis, 203 F.3d 103, 111 (1st Cir. 2000); United States v. Johnson, 816 F.2d 918, 921 n.4 (3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984).

We decline to adopt the first two factors because they do not necessarily reflect whether the suspect’s understanding of their rights or the voluntariness of their waiver was affected by any meaningful change in circumstances between the polygraph and post-polygraph interrogation. So too, the third factor speaks to the existence and scope of any waiver – specifically whether the signed waiver was broad enough to cover both the polygraph and any follow-up questioning – rather than on whether subsequent events impacted the suspect’s ability to understand or voluntarily maintain the waiver. 37 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 38

their Miranda rights might diminish. However, “the passage of time alone

[does not] invalidate[] previously given Miranda warnings.” Mitchell v. Gibson,

262 F.3d 1036, 1057 (10th Cir. 2001). “Courts have consistently upheld the

integrity of Miranda warnings even in cases where ‘several hours’ have elapsed

between the reading of the warning and the interrogation.” Id. at 1057–58

(quoting United States v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996)).

Here, there was no break in time between the advisement of his rights,

the pre-polygraph interview, the polygraph test, and the post-polygraph

interrogation. The advisement of rights and waiver took less than 10 minutes,

the pre-polygraph interview lasted about an hour and a half, the polygraph

test itself ranged between thirty minutes to an hour, and the post-polygraph

interview extended for approximately three hours. Altogether, from the time

Martinez was given his Miranda warnings and waived these rights to the

conclusion of all questioning, the entire process spanned roughly six hours.

Less than three hours elapsed between his advisement of rights and the start

of the post-polygraph interview. This relatively short time frame suggests that

the initial advisement of rights remained fresh throughout the process.

Changes in the environment. When considering whether there were

changes in the location or environment between the initial and subsequent

interrogation, see id. at 1058 (analyzing “whether the character of the

interrogation had changed significantly”), we examine, inter alia, whether the

38 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 39

initial and subsequent interrogations occurred in the same location, whether

the same law enforcement personnel conducted both interrogations, and

whether the same individuals were present during both interrogations. A

change in the location or environment may lead to a significant change in

circumstances because it might alter the psychological or emotional state of

the suspect, which could make them more likely to forget, confuse, or

misunderstand their rights.

Here, both the polygraph test and post-polygraph interview took place in

the same room and were conducted by the same person, Agent Coyle, with only

Martinez and Agent Coyle present the entire time. These facts indicate

continuity rather than a significant shift in the interrogation environment.

Subject matter of the questioning. We also evaluate whether the subject

matter of the questioning changed or shifted between the initial and

subsequent interrogation. See id. (examining “whether the questions put to the

defendant subsequently would have caused him to forget the rights of which

he had been advised and which he had previously understood”).

Here, during both the polygraph examination and the post-polygraph

interview, the subject matter of the questioning remained the same – Martinez

was fully aware that he was being asked about, and then accused of, causing

Suazo’s death. The consistent focus on the same subject matter throughout the

questioning demonstrates no substantial change in circumstances.

39 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 40

Awareness of follow-up interrogation. Additionally, we consider whether

the suspect was informed in advance that follow-up questions or further

interrogation could take place. Awareness of a follow-up interrogation reduces

the likelihood that the subsequent questioning would feel like a distinct or

separate event, thereby preserving the effectiveness of the initial Miranda

warnings and waiver of rights.

Here, Agent Coyle told Martinez during the pre-polygraph interview,

“something to the effect of, ‘if you don’t do well, then we will discuss that at the

end,’” Aplt. App. II at 95, putting Martinez on notice that subsequent

questioning could occur. Like Miranda warnings, magic words are not required

to put a suspect on notice that follow-up questions or interrogation may be

forthcoming. That is especially true when, as here, the agent concludes the

suspect provided deceptive responses during the polygraph test. Just as in

Fields, “it would have been unreasonable for [Martinez] . . . to assume that [he]

would not be informed of the polygraph readings and asked to explain any

unfavorable result.” 459 U.S. at 47.

Any other circumstances. Lastly, we consider any other circumstances

suggesting that the effectiveness of the earlier Miranda warning had or had

not diminished by the time of the subsequent interrogation. Rodriguez-

Preciado, 399 F.3d at 1129. In support, Martinez points to the five factors the

40 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 41

district court found indicative of a change in circumstances. We address each

in turn.

First, the district court determined that Martinez’s status as a “young

man who had no previous exposure to the criminal justice system,” and who

was not represented by counsel, weighed in favor of a change in circumstances.

Aplt. App. II at 238 (quoting United States v. Johnson, 816 F.2d 918, 921 n.4

(3d Cir. 1987)). Yet these facts pertain more to whether Martinez’s initial

waiver was knowing and voluntary, rather than whether there was a

subsequent change in circumstances. Relevant to our inquiry, Martinez’s age

of 29 does not necessarily qualify him as young. And while he may not have

been represented by counsel, that was of his choosing. He first spoke to FBI

agents the morning of Suazo’s death and was not reapproached about a

subsequent interview until more than a week later. Either way, his age and

status as unrepresented by counsel remained unchanged for the duration of

his time at the Taos Police Department.

Second, the district court concluded there was a change in circumstance

because Martinez was never advised, either orally or in writing, prior to

signing the advice of rights form that post-examination questioning was a

possibility. However, before the polygraph test, Agent Coyle told Martinez,

“something to the effect of, ‘if you don’t do well, then we will discuss that at the

end.’” Aplt. App. II at 95. Moreover, this argument is foreclosed by Fields. 459

41 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 42

U.S. at 47 (“[I]t would have been unreasonable for Fields and his attorneys to

assume that Fields would not be informed of the polygraph readings and asked

to explain any unfavorable result.”). Thus, this fact is unpersuasive.

Third, the district court pointed to the fact that although Martinez

initially raised the possibility of a polygraph, it was the FBI agents who took

the concrete steps to arrange it. This fact is both obvious and mostly irrelevant.

The Government has the duty to investigate crimes, so naturally it arranged

the polygraph test because it has both the polygraph machine and the

polygrapher. This fact does little to explain any change in the circumstances

or conditions under which Martinez initially waived his rights.

Fourth, the district court highlighted that Agent Coyle, not Martinez,

initiated the post-test interview. While who initiated the subsequent

interrogation can be relevant to whether a suspect implicitly waived their

rights – since initiating contact can be seen as a course of conduct indicating

waiver, see Butler, 441 U.S. at 373 – it again does not address whether the

conditions under which the suspect initially waived their rights had changed.

Lastly, the district court emphasized that Agent Coyle “effectively

switched her role from that of neutral test administrator to an interrogator”

who refused to accept Martinez’s claimed loss of memory, who proposed her

own facts, and who employed an “unrelentingly aggressive and accusatory

post-test questioning” for “over three hours . . . .” Aplt. App. II at 242–44. The

42 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 43

Government asserts that these factual findings characterizing the post-

polygraph interview were erroneous.

We agree. This characterization of the interview assumes, without basis

in the record, that Agent Coyle was ever “neutral” such that her role switched

while she was in the room with Martinez. Agent Coyle works for the FBI to

conduct interviews and polygraph examinations. Although objectivity should

be central to her role as a criminal investigator, no reasonable person in

Martinez’s position would or should conclude that an FBI Agent is simply a

“neutral test administrator . . . .” Aplt. App. II at 242. This is particularly true

after she advised him of his Miranda rights and informed him that FBI agents

wanted to discuss Suazo’s death, where, by Martinez’s account, he was the only

person present when she died.

Moreover, the shift in the tone and manner of questioning may have

represented a change in conditions but, in light of the other circumstances just

discussed, it was not significant enough to cause Martinez to forget or

misunderstand his initial rights. After all, it is unsurprising that a polygraph

test would be conducted in a less accusatory manner than a subsequent post-

polygraph interview.

Considering the totality of the circumstances, merely “[d]isconnecting

the polygraph equipment effectuated no significant change in the character of

the interrogation,” and “would not have caused [Martinez] to forget the rights

43 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 44

of which he had been advised and which he had understood moments before.”

Fields, 459 U.S. at 47, 49. Therefore, we hold that the district court erred in

suppressing Martinez’s post-polygraph statements on the grounds that he was

required to be re-Mirandized and his waiver reaffirmed before the post-

As a last resort, Martinez alternatively argues that his post-polygraph

statements were made involuntarily or were the product of coercion. Although

this argument was not presented to the district court in his motion to suppress,

Martinez asserts we “may affirm [the district court] for any reason supported

by the record.” Resp. Br. at 53 (quoting United States v. Myers, 362 F.3d 667,

674 n.7 (10th Cir. 2004)) (alteration in original). We decline to consider this

new argument raised by Martinez for the first time on appeal, particularly as

this case is in the pretrial phase and the district court has not been provided

an opportunity to address it in the first instance.

B

In the second appeal, the Government argues that the district court

erred in excluding text messages from Suazo to Martinez, in which she

repeatedly expressed her intent to break up with him, on hearsay grounds per

Rule 801(c). The Government asserts that these messages show their impact

44 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 45

on Martinez as the listener, rather than prove Suazo actually intended to end

the relationship. That effect, according to the Government, is his potential

motive or intent to harm Suazo in response to her expressed desire to leave

him. Additionally, the Government sought to introduce this evidence to

contradict Martinez’s claim that on the morning of her death the couple was

“fine” and had no issues. Op. Br. at 19–20 (quoting Aplt. App. I at 135).

“We review a district court’s evidentiary rulings for an abuse of

discretion, considering the record as a whole.” United States v. Ledford, 443

F.3d 702, 707 (10th Cir. 2005). A district court abuses its discretion when its

decision is “arbitrary, capricious or whimsical” or when it commits legal error.

United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997) (quoting

United States v. Wright, 826 F.2d 938, 943 (10th Cir. 1987)). We will not

reverse an evidentiary determination that “falls within the ‘bounds of

permissible choice in the circumstances.’” Id. (quoting United States v.

Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996)).

The Federal Rules of Evidence define “hearsay” as a statement that “the

declarant does not make while testifying at the current trial or hearing . . .

offere[d] in evidence to prove the truth of the matter asserted in the

45 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 46

statement.” Fed. R. Evid. 801(c). Hearsay is generally inadmissible unless it

falls within a specific exception to the hearsay rule. Fed. R. Evid. 802.

However, “[i]f the significance of an offered statement lies solely in the

fact that it was made, no issue is raised as to the truth of anything asserted,

and the statement is not hearsay.” Fed. R. Evid. 801(c) advisory committee’s

note to 1972 proposed rules. Thus, “[w]e have long held that a statement

offered to establish its effect on the listener is not hearsay.” United States v.

Murry, 31 F.4th 1274, 1292 (10th Cir. 2022). Statements admitted for this

purpose can be relevant to proving the intent, knowledge, beliefs, motivation,

or any other reaction of the person who heard it. See 30B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 6719 (3d ed. 2024). For

example, such statements can explain “why the listener acted as [they] did.”

United States v. Churn, 800 F.3d 768, 776 (6th Cir. 2015); accord 4 Christopher

B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:20 (4th ed. 2024)

(“Sometimes the point is to explain why a person behaved as [they] did, since

words read in print or heard in conversation can motivate or inform the person

who reads them or hears them spoken.”).

The district court excluded the messages on the basis that they “‘invite[d]

the jury to accept as true’ [Suazo’s] statements of her intent to break up with

Mr. Martinez.” Aplt. App. II at 252 (quoting United States v. Graham, 47 F.4th

46 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 47

561, 567 (7th Cir. 2022)). Because Martinez “either did not respond at all,

responded but did not address the portions of her messages that indicated her

intent to end their relationship, or apologized and even agreed that she should

not be with him if she was unhappy,” the district court determined that the

messages could not have been offered to show that they caused him to develop

the motive or intent to kill her and were instead being offered to show that she

wanted to break up with him. Id. The district court, therefore, ruled that the

messages were inadmissible hearsay. Id. at 254.

The Government disputes that it sought to admit the text messages for

the truth of the matter asserted, or in other words, “that [Suazo] actually

intended to break up with [Martinez].” Op. Br. at 19 (quoting Aplt. App. I at

130). We agree that the text messages were not offered for a hearsay purpose

and hold that the district court erred in excluding them as inadmissible on this

basis.

First, for these statements to be admissible, it is not necessary for the

Government to prove that Suazo genuinely intended to break up with

Martinez. Rather, the evidentiary value lies in the fact that her phone

communicated this information to his phone. Hypothetically, even if someone

else had taken Suazo’s phone and written all the pertinent messages, the effect

on Martinez would still be the same.

47 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 48

Second, the district court erred as a matter of law by requiring the

Government to produce evidence of Martinez’s responses to the messages to

establish their effect on him as the listener. For the “effect on the listener”

exception to be applicable, it is sufficient that the listener received the

information and that it had some impact on them. See, e.g, United States v.

Farley, 992 F.2d 1122, 1125 (10th Cir. 1993) (holding that child sex abuse

victim’s statements to sibling that “[defendant] is going to get you. He’s a bad

man,” as overheard by their mother, could be used to explain the mother’s

suspicion and decision to question the victim); United States v. Morales-

Macias, 855 F.2d 693, 695 (10th Cir. 1988) (holding that witness’s testimony

that his brother instructed him to go to a bar in El Paso to meet a man who

would take him to Albuquerque for $500 was properly offered to explain why

the witness went to the bar and rode in the man’s vehicle); United States v.

Twitty, 689 F. App’x 890, 893–95 (10th Cir. 2017) (unpublished)10 (holding that

redacted court orders, which defendant referenced in threatening letters he

sent to court staff and related parties, were not hearsay because the redacted

orders were not offered to prove the truth of the statements in the orders but

to show the effect on the defendant, to establish his intent to send threatening

communications, and to provide context for the letters).

10 Unpublished decisions are cited for their persuasive value only and

are not binding precedent from this Court. 10th Cir. R. 32.1(A). 48 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 49

The effect may manifest in the listener’s mind or actions, whether

through verbal communication or non-verbal behavior. Moreover, the effect

does not necessarily have to occur close in time to when the statement was

made. What is more, we have never required the proponent of the statement

to prove that the listener responded directly to or acknowledged – in writing or

otherwise – the original message.

The relevant inquiry is whether the evidence supports reasonable

inferences about how the statements influenced the listener’s state of mind,

decisions, or actions in a way that is pertinent to the case. The proponent of

the statement does not need direct evidence that the statement caused the

effect, such as the listener explicitly saying they felt a certain way or took a

particular action because of the statement. Rather, causation can be inferred

through reasonable inferences.

The district court noted that in response to Suazo’s messages indicating

her desire to end the relationship, Martinez either did not respond, responded

without addressing her intent to break up, or showed contrition by agreeing

that she should not stay with him if she was unhappy. As a result, the district

court indicates that the Government’s actual intent in using these messages is

to suggest a different effect on Martinez that is not supported by his responses

to Suazo’s messages. The district court was concerned that the Government

49 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 50

was attempting to infer a motive or emotional state (such as distress or anger)

from the text messages that Martinez’s text responses may not substantiate.

Noting this concern, the most reasonable inference to make from reading

the text messages is that they represent only a part of the communications

between Suazo and Martinez. There were implicitly additional interactions

after or in between those messages – potentially in person or over the phone –

that are not captured in the text responses. See, e.g., Aplt. App. I at 132–33

(Martinez responding the next day to break up message by texting: “We’re on

our way now babe I love you so much and can’t wait to be there with you [heart

emoji] be careful on your way down”). Meaning, the effect of the text messages

on Martinez is not recorded solely by his text message responses or, in some

instances, perceived lack thereof.

Most significantly, the district court misinterprets the reaction the

Government is purporting Suazo’s text messages caused. The Government is

not intending to offer into evidence Suazo’s text messages to explain why

Martinez responded the way he did over text. Instead, it would like to use the

messages to explain why he “acted as [he] did” in allegedly killing Suazo.

Churn, 800 F.3d at 776. The argument is that these messages reveal

Martinez’s perception of a fractured relationship, and thus reveal Martinez’s

motive to kill Suazo.

50 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 51

We stress that these points are simply the Government’s arguments

based on reasonable inferences drawn from the evidence. Undoubtedly,

Martinez can still present counterarguments to the jury, challenging how and

whether this evidence supports the Government’s theory of his motive, if any.

He may also have other valid objections to the admission of this evidence.

Recall that this appeal came to us from an in limine ruling. “Although

the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

practice has developed pursuant to the district court’s inherent authority to

manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984).

Beyond our determination in this appeal that it was error to rule in limine that

the text messages must be excluded from the trial evidence as inadmissible

hearsay, our decision does not otherwise undermine the district court’s

inherent authority to manage the evidence admitted at trial.

C

Lastly, in the third appeal, the Government argues that the district court

erred in excluding witness testimony that, approximately eleven months before

Suazo’s death, Martinez once pinned her down and strangled her so that she

could not leave his home. The Government asserts that this prior act of violence

is not offered to prove Martinez’s propensity for violence, but it is admissible

under Rule 404(b) to show intent, motive, lack of accident, and to rebut

51 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 52

Martinez’s claim that he and Suazo had never been in a physical fight. Because

prior acts of violence toward the same victim are routinely admitted in similar

cases, the Government contends that the district court misapplied both Rule

404(b) and relevant case law in excluding this evidence.

The district court ruled that the witness testimony of a prior instance of

domestic violence perpetrated by Martinez against Suazo was inadmissible

because the Government failed to meet its burden of demonstrating a

permissible use of the domestic abuse evidence that would not involve “a chain

of inferences dependent upon the conclusion that [Mr. Martinez] has violent

tendencies and acted consistent with those tendencies.” Aplt. App. II at 261

(quoting United States v. Commanche, 577 F.3d 1261, 1269 (10th Cir. 2009))

(alteration in original). It reasoned “[t]he relevance of the prior bad acts

evidence here thus would require the jury first to conclude that Mr. Martinez

‘had a propensity for committing violence against [Suazo] and that the alleged

murder was such an incident.’” Id. (quoting United States v. Eaves, 180 F.

Supp. 3d 938, 942 (N.D. Okla. 2016)).

We consider the admissibility of evidence under Rule 404(b) to be a “case-

specific inquiry” and rely heavily on the district court’s “broad discretion.”

United States v. Henthorn, 864 F.3d 1241, 1248 (10th Cir. 2017) (quoting

United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006)). The timing of

the district court’s ruling is important because it first ruled Martinez’s

52 Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 53

statements to Agent Coyle to be inadmissible before it ruled on this motion in

limine under Rule 404(b). Because we have now reversed the decision to

suppress the post-polygraph statements, we likewise reverse and remand the

Rule 404(b) ruling for reconsideration in recognition of the changed evidentiary

landscape. The best course of action is to permit the parties to recalibrate their

arguments and presentations and give the district court the opportunity to

reweigh these arguments in this case-specific inquiry.

IV

In conclusion, we REVERSE the in limine rulings excluding Martinez’s

post-polygraph statements, the text messages between Suazo and Martinez

discussing the end of their relationship, and testimony about an alleged act of

domestic violence perpetrated by Martinez against Suazo. We REMAND for