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UNITED STATES V. PENA, 2024 WL 4048170 (10th Cir. 2024)
Though this case tells the tale of a particularly evil father and an aggressive interrogation, pay close attention to the statements made by investigators during the interrogation and factors the court ultimately relied on in assessing whether the damning confession was properly admitted before the jury. Note, too, how a school resource officer apparently managed to create enough trust for the victim to report her abuse.
Jose Pena created an elaborate scheme to rape his 15-year-old daughter. Posing as “Jaime Peres” on Facebook, Pena began an online relationship with his daughter. After nearly a year of amorous messaging, “Jaime” suddenly claimed to be a cartel member and threatened to kidnap and behead his victim’s father unless she filmed herself having sex with him.
The daughter recorded herself having sexual intercourse with Pena and sent the videos to “Jaime” through Facebook. “Jaime” told the daughter it didn’t “look like enjoying” the sex and she had to record more videos of herself having sexual intercourse with her father, “but to enjoy it this time.” The daughter protested and “Jaime” told her the cartel had seized her father and had hurt him. She gave into “Jaime’s” demand and made an additional recording of herself having sexual intercourse with her father and again used Facebook to send the video to “Jaime.”
The next day, the daughter confided in her school resource officer, who contacted investigators. Pena went voluntarily with his wife to the police station. An investigator provided Miranda warnings and Pena agreed to an interview. The investigator told Pena he was “free to refrain from answering questions” and “to end the interview at will.” The investigator also said he was “not accusing Pena of anything right now.”
Pena claimed he was in custody during the interview for purposes of Miranda. He argued the questioning was “prolonged and accusatory” — sometimes conducted in a loud tone of voice — for nearly four hours. When Pena arrived at the police station voluntarily, he was immediately separated from his wife and placed in an interview room. As many as three officers at once participated in questioning in the six by 10-foot room. The principal investigator invaded Pena’s personal space several times with hand gestures and by extending his legs between Pena’s legs. The investigator used a “much louder” tone of voice to tell Pena to confess, using phrases like “be honest” and “tell the truth” nearly 100 times in four hours.
At one point, Pena’s wife was allowed into the room. She encouraged Pena to tell the truth:
“Well, tell the truth, José. Tell the truth because look how your daughter has suffered. She’s suffered a lot, she is suffering a lot, she wants to die. Your son wants to kill himself too, he wants to hang himself. We are all suffering. You know how all of this is happening. We are suffering a lot, José, because of all of this. It’s that you have to tell the truth, José, you have to tell.”
Pena had a strong emotional response to this appeal and confessed shortly thereafter he was “Jaime Peres,” that he sent the threats as “Jaime” and that he had sexual intercourse with his daughter.
The trial court denied Pena’s motion to suppress his confession, finding it voluntary under the totality of the circumstances. A jury subsequently convicted Pena of inducing a minor to engage in sexual activity and producing child pornography. The court sentenced Pena to 25 years in prison.
Pena appealed. The appellate court upheld the lower court’s decision, concurring that Pena’s confession was voluntary. The court found law enforcement’s conduct, while at times “uncivil” and “troubling,” did not render Pena’s decision to confess involuntarily.
When a defendant challenges the voluntariness of a confession, the prosecution bears the burden of demonstrating a confession is voluntary by a preponderance of the evidence, considering the totality of the circumstances. Courts generally consider:
- The defendant’s age, intelligence and education
- The length of the detention
- The length and nature of the questioning
- Whether officers provided Miranda warnings
- Whether officers subjected the defendant to physical punishment
In this case, Pena specifically challenged the length and nature of his questioning.
The trial court ruled Pena was “not particularly susceptible to coercion” and the appellate court agreed. The investigator “thrice informed” Pena he could refuse to answer questions, giving him a Miranda warning, reminding Pena he could decline to answer any questions during the interrogation, and telling him if he decided he didn’t “want to talk anymore,” he could “stop talking.” The court held the duration of the interrogation, which lasted “three hours, 48 minutes and eight seconds” was not inherently troubling for Fifth Amendment purposes. Investigators gave Pena breaks in questioning, offering soda, water and the opportunity to use the bathroom. Though investigators intermittently spoke loudly and gestured into Pena’s personal space, there was no suggestion these physical actions or intrusions critically impaired Pena’s capacity for self-determination.
The appellate court further disagreed the investigators’ “repeated exhortation for honesty” overcame Pena’s free will. Though the investigators initially told Pena he was not a suspect and also misled him about the strength of the evidence against him, the questioning soon established Pena was a suspect long before he confessed. As the decision makes clear, “deceit does not inherently render a confession involuntary.”
The court acknowledged “familial involvement in an interrogation might persuade a suspect to confess” and agreed Pena’s then-wife may have been acting as a government agent at one point but held the wife’s (now ex-wife’s) encouragement simply did not prevent him from making decisions for himself.
Finally, the court determined any potential error in admitting the confession was harmless beyond a reasonable doubt due to overwhelming evidence of Pena’s guilt, including DNA evidence recovered from the victim, Pena’s admission that he was the man in the recordings of sexual acts with his daughter and digital forensic evidence linking him to the alias “Jaime Peres.”
Read more Ken Wallentine case reviews here.
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