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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Prince Anthony Kelly, 

Defendant.

No. CR-15-01632-001-TUC-RM

ORDER 

 Pending before the Court is a Report and Recommendation issued by Magistrate 

Judge Jacqueline M. Rateau (Doc. 97). In her Report and Recommendation, Judge 

Rateau recommends that this Court grant Defendant’s Motion to Suppress Identification 

Evidence and deny Defendant’s Motion to Suppress Defendant’s Statements. Both 

parties have objected to Judge Rateau’s recommendation, and this Court thus reviews 

Defendant’s Motions to Suppress de novo. See 28 U.S.C. § 636(b)(1) (“A judge of the 

court shall make a de novo determination of those portions of the report . . . to which 

objection is made.”) 

. . . 

. . . 

. . . 

. . . 

. . . 

. . . 

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I. Factual Background1

A. March 24, 2015 

 On the morning of March 24, 2015, two men entered a firearm store in Sierra 

Vista, Arizona. (Tr. 2 at 5:22-25, 6:3-12; 38:7-11.) During the Motions Hearings held 

before Judge Rateau, the store’s salesperson Jennifer Stark testified that one of the men 

was African-American and the other was Caucasian. (See id. at 4:17-18.) The AfricanAmerican man is referred to herein as “the Suspect” and is alleged to be Defendant 

Prince Anthony Kelly. The Caucasian man has since been identified as Matthew 

Androsky. (See id. at 95:24-96:4.) Ms. Stark testified that her attention was drawn to the 

men because Mr. Androsky’s attire made him appear out of place. (Id. at 4:24-5:2.) 

During the thirty to forty-five minutes that the men browsed the store, Ms. Stark handed 

them each eight to ten guns to examine. (Id. at 10:10-18; 11:23-25.) Ms. Stark 

remembers that the Suspect was very jovial, and smiled and laughed throughout the 

encounter. (Id. at 13:5-8.) The gun store is well lit and while the two men handled the 

guns, Ms. Stark was within three to five feet of the two men. (Id. at 7:20-8:20; 11:4-8.) 

Ms. Stark paid close attention while the guns were out to make sure the guns remained 

unloaded and none of the magazines were taken. (Id. at 11:2-11.) She testified that in 

keeping a close watch on the guns, she mainly looked at the guns and the men’s hands. 

(Id. at 104:5-23.) 

 Mr. Androsky ultimately asked to purchase a gun. (Id. at 14:11-15.) After Ms. 

Stark completed the sale to Mr. Androsky, the Suspect indicated that he too wished to 

purchase a gun. (Id. at 22:14-16.) The Suspect began to fill out the ATF form necessary 

to purchase the firearm, made a mistake and requested another form, and then decided 

that he wanted to wait to purchase the weapon because he needed to count his money. 

 

1

 Neither party asked this Court to hold oral argument on their objections. Given the thorough record created by the parties before Judge Rateau, further oral argument would not assist this Court in resolving the pending motions. Accordingly, the facts recorded are taken from the sworn testimony and evidence entered during the Motions Hearings held by Judge Rateau on February 1, 2016, February 5, 2016, and March 1, 

2016. 

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(Id. at 23:14-25:13.) The two men left the shop. (Id. at 37:11-12.) 

 The Suspect returned to the store around lunchtime with an African-American 

man. (Id. at 38:4-6, 16-22.) The Suspect indicated that he wished to purchase the gun he 

had previously indicated to Ms. Stark, and she took out the gun and provided him with 

another form to complete. (Id. at 40:15-18; 41:23-42:5.) The Suspect made another 

mistake on this form, and was handed a replacement. (Id. at 42:10-43:7.) After he 

completed the form, Ms. Stark asked to see some identification and the Suspect handed 

her an Arizona identification card. (Id. at 51:14-22.) The name the Suspect wrote on the 

form was “Anthony J. Kelly.” Defense Exhibit 55. Ms. Stark examined the picture on 

the ID to make sure the information and picture depicted matched the Suspect and what 

he wrote on the form. (Tr. 2 at 17:17-18:11.) Ms. Stark then called the National Instant 

Criminal Background Check System (“NICS”) to confirm that she could sell a gun to the 

Suspect. (Id. at 52:16-17.) NICS told Ms. Stark they needed to further review the 

Suspect’s history before they could approve the sale. (Id. at 15-16.) Because this 

response indicates that a sale might not go through that day, Ms. Stark removed the gun 

from the counter and put it on a chair behind her. (Id. 54:22-55:4.) Ms. Stark then told 

the Suspect that NICS had to conduct further review before she could sell him the gun 

and he “lost his smile.” (Id. at 55:13-20.) After a few minutes, NICS told Ms. Stark to 

delay the sale, triggering a five-day waiting period before Ms. Stark could sell the gun to 

the Suspect. (Id. at 56:1-21.) 

 Ms. Stark informed the Suspect that if he wanted to put a deposit down, she would 

hold the gun for him so he could purchase it after NICS approved the sale. (Id. at 56:22-

24.) Ms. Stark then asked for the Suspect’s telephone number so she could call him when 

she heard back from NICS. (Id. at 57:12-15.) Thereafter, the Suspect’s companion 

offered to fill out a form on the Suspect’s behalf. (Id. at 58:5-10.) Ms. Stark informed 

them that someone could not fill the form out on someone else’s behalf. (Id. at 58:6-7, 

17-18.) The two men then left the store. (Id. at 59:24-60:1.) 

 The Suspect and his companion returned to the store less than thirty minutes later. 

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(Id. at 60:21-25.) The Suspect told Ms. Stark he wanted his form back in a demanding 

tone. (Id. at 61:16-17.) When Ms. Stark responded that she could not give it to him 

because it was now federal property, he placed his hands on the counter in a way that 

made her believe he was going to jump over the counter. (Id. at 62:8-9; 63:1-2.) At this 

point, Ms. Stark thinks she managed to text the word “video” to her brother so he could 

turn on the security cameras in the store. (Id. at 10-14.) Ms. Stark testified that she was 

in fear for her life and backed away as far as she could. (Id. at 63:15-16; 64:1-9.) She 

also testified that she put her hand on her hip to demonstrate that she was armed. (Id. at 

63:15-16.) The Suspect’s companion grabbed the Suspect’s shirt and guided him out of 

the store. (Id. at 66:11-24.) Ms. Stark testified that because she saw they were walking 

in the direction of a nearby gun store, she called the store to warn them that one of the 

gentlemen had previously offered to make a “straw purchase” for the other. (Id. at 68:9-

24.) 

 Shortly thereafter, Ms. Stark testified that the Suspect and his companion came 

back to the store, this time accompanied by a smaller African-American man and a 

Caucasian couple. (Id. at 69:6-19.) While in the store, the Suspect told the smaller 

African-American man he had tried to purchase a gun but had received a “delay” from 

NICS. (Id. at 70:4-5.) The Suspect’s smaller companion responded that he had a gun at 

home he could sell to the Suspect, and the Suspect responded “Yes, let’s do that.” (Id. at 

70:5-6; 71:19-22.) Ms. Stark testified that at this point she texted her brother for more 

video because she was in disbelief that they would have a conversation about the 

commission of a crime in front of her. (Id. at 75:25-76:6.) She said she was so 

“dumbfounded” that she did not say anything else to the group. (Id. at 72:4-10.) The 

group then left the store. (Id. at 72:13-15.) Ms. Stark testified that while the group was 

in the store, no guns were out. (Id. at 135:3-14.) This was the last time Ms. Stark saw 

the Suspect. She later called an officer at the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”) to report what she had witnessed. (Id. at 75:10-13.) 

. . . 

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B. ATF Interview and Lineup 

 A few weeks later, Ms. Stark met with ATF Agent Heather Cox-McClain for an 

interview and to review a line-up. (Tr. 3 at 76:16-24; Tr. 4 at 20:18-22.) After Agent 

Cox-McClain interviewed Ms. Stark about the events of March 24, 2015, Ms. Stark sent 

Agent Cox-McClain a written statement, and Agent Cox-McClain typed a summary of 

the information Ms. Stark had recounted. (Tr. 4 at 77:14-78:9; 81:1-6.) Ms. Stark 

reviewed the summary and signed it. (Tr. 3 at 136:20-137:3.) At this point, the only 

description Ms. Stark had provided of the Suspect was that he had a similar height and 

build as the African-American companion who was with him the second, third, and 

fourth time Ms. Stark encountered him. (Tr. 4 at 83:21-84:12.) 

 Agent Cox-McClain provided ATF Intelligence Research Specialist Dennis 

Fasciani with the name “Anthony Kelly” and the date-of-birth the Suspect filled out on 

the ATF form. (Tr. 1 at 12:23-25.) Mr. Fasciani composed a “six-pack,” a one page 

sheet with a picture of the Defendant and five other presumably similarly looking 

individuals. (Id. at 5:2-6, 16:21; 12:3-10.) Mr. Fasciani uses pictures taken at Arizona 

Motor Vehicles Divisions for the lineups. (Id. at 5:23-6:2.) Mr. Fasciani placed the 

Defendant’s Arizona ID picture in slot number one on the six-pack, that is, in the top left 

slot. (Id. at 13:4-7.) Placing a suspect or defendant in this first slot is Mr. Fasciani’s 

standard practice when the Agent requesting the lineup does not specify where in the 

lineup the suspect should be placed. (Id. at 5:13-15; 20:25-21:8.) Mr. Fasciani has 

received no training on the lawful creation of a photographic lineup, or in particular, what 

it means to create a photographic lineup that is not impermissibly suggestive. (Id. at 

23:21-25; 24:18-23; 25:2-25.) 

 Agent Cox-McClain presented Ms. Stark with the lineup created by Mr. Fasciani. 

(Tr. 4 at 22:17-19.) Agent Cox-McClain has not received any training regarding how to 

conduct a lawful, unsuggestive photographic lineup. (Id. at 60:7-61:19.) Agent CoxMcClain testified during the hearings before Judge Rateau that she advised Ms. Stark she 

may or may not recognize anyone in the lineup. (Id. at 62:2-6.) Ms. Stark testified that 

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Agent Cox-McClain also advised her that the Suspect may or may not be included in the 

six-pack. (Tr. 2 at 79:5-8.) Ms. Stark examined the six-pack and immediately crossed 

out the individuals pictured in slots two through five. (Id. at 81:16-17; 82:1-7; see also

Tr. 4 at 23:16-24:13.) She studied the remaining two slots—slots one and six, for nearly 

fifteen minutes, but ultimately stated she could not decide between the two. (Tr. 2 at 

81:13-14; 82:8-11, 22-24.) She said that slot one had similar features as the Suspect, but 

slot six had a similar expression. (Id. at 81:2-6; 83:2-7; see also Tr. 4 at 24:15-20.) At 

some point while Ms. Stark was examining the six-pack, she mentioned to Agent CoxMcClain that it was hard to identify the Suspect because he had been wearing a baseball 

cap at the time of the incident. (Tr. 2 at 88:3-5; Tr. 4 at 62:21-25.) Agent Cox-McClain 

then used a folder to simulate what slots one and six would look like with their foreheads 

covered by a hat. (Tr. 2 at 88:7-9; Tr. 4 at 63:15-64:2.) Ms. Stark was still unable to 

decide between the two pictures. (Tr. 2 at 88:10-11; see also Tr. 4 at 24:21-22.) 

 Shortly before the Motions Hearing before Judge Rateau, Ms. Stark met with 

Agent Cox-McClain to prepare for her testimony. (Tr. 2 at 84:3-5; Tr. 4 at 69:22-70:1.) 

Later that day, Ms. Stark’s brother sent her a text message with a link to an article about 

Defendant and a Caucasian woman who were arrested in Sierra Vista. (Tr. 2 at 84:8-

85:4; Tr. 4 at 69:14-70:5.) Ms. Stark immediately recognized the woman pictured as 

being part of the couple who accompanied the Suspect into the store the last time she saw 

him on March 24, 2015. (Tr. 2 at 85:2-11.) Ms. Stark then looked at the picture of the 

Defendant and determined he was the Suspect. (Id. at 86:1-5.) Feeling that any 

subsequent identification she might make of Defendant would be compromised by her 

seeing the article, Ms. Stark called Agent Cox-McClain and reported the incident. (Id. at 

86:22-87:6.) Ms. Stark remembers that she deleted the text message and was unable to 

share it. (Id. at 86:25-87:2.) Agent Cox-McClain testified, however, that Ms. Stark 

forwarded her the text and Agent Cox-McClain then informed the Government’s counsel. 

(Tr. 4 at 26:20-27:1; 70:19-25.) 

. . . 

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C. August 17, 2015 Transport 

On August 17, 2015, Agents Cox-McClain and Darren Clemons traveled to the 

Cochise County Jail where Defendant was being held on State charges that had recently 

been dismissed due to law enforcement corruption. The Agents were tasked with 

executing an arrest warrant on Defendant and transporting him to federal court in Tucson, 

Arizona for processing. On their way to the jail, the Agents stopped at a McDonalds to 

buy breakfast. Agent Cox-McClain bought Defendant a sandwich because she thought 

he would appreciate it after spending months in jail. (Tr. 4 at 8:2-8.) Agent Clemons 

testified that he believed Agent Cox-McClain bought the sandwich not only to help 

Defendant, but also to encourage Defendant to be friendly so they “wouldn’t have any 

problems with him while transporting.” (Tr. 3 at 36:7-23.) 

 When they arrived at the jail, Agent Cox-McClain briefly told Defendant they had 

a warrant for his arrest and were transporting him to federal court. After the Agents 

secured Defendant in Agent Cox-McClain’s vehicle and began the two-hour ride to 

Tucson, Agent Cox-McClain told Defendant what would happen when he arrived at the 

federal courthouse. Among other procedural details, Agent Cox-McClain informed 

Defendant he was entitled to either choose an attorney or have an attorney appointed to 

represent him during the afternoon’s hearing. At no point did either Agent advise 

Defendant of the rights detailed in Miranda v. Arizona, 384 U.S. 436 (1966). Both 

Agents testified that their personal preference is to not advise persons picked up from 

another agency’s custody of their Miranda rights. (Tr. 3 at 55:19-25. Tr. 4 at 34:22-

35:6.) 

 After Agent Cox-McClain detailed the process for Defendant, she gave him the 

arrest warrant, explained the charges to him, and explained the basis of these charges. In 

particular, she told Defendant he was being charged with “providing a false statement in 

connection with the purchase of a firearm, specifically that he check[-]marked ‘No’ when 

the question was, ‘Have you ever been convicted of a previous felony.’” (Tr. 4 at 13:1-6.) 

Defendant responded to Agent Cox-McClain by saying he thought he was fine to 

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purchase a firearm because he was “off-paper.” (Id. at 15-17.) Agent Cox-McClain 

asked Defendant what “off-paper” meant, and Defendant responded “off parole.” (Id. at 

13:15-20.) Agent Cox-McClain advised him that he was mistaken and that he had to 

either receive a pardon or have his rights restored before he could attempt to purchase a 

gun. (Id. at 21-23.) Defendant appeared to misunderstand the charge and asked if the 

offense was a misdemeanor. (Tr. 3 at 13:9-11.) Both Agents responded that it was not a 

misdemeanor, but a felony charge. (Tr. 3 at 13:9-14; Tr. 4 at 14:3-7.) Agent CoxMcClain explained he could face up to ten years imprisonment. (Tr. 4 at 14:7.) 

Defendant stated that “it was just a piece of paperwork” and that he did not actually get 

the gun. (Tr. 3 at 13:19-25.) Defendant then stated “I guess this one’s on me. I didn’t 

know I could get in trouble for trying to buy a gun.” (Tr. 4 at 14:8-10.) Agent CoxMcClain testified that it was after this conversation that she gave Defendant the 

McDonald’s sandwich. (Tr. 4 at 16:13-17.) Agent Clemons testified that Agent CoxMcClain offered Defendant the sandwich within five minutes of leaving the jail. (Tr. 3 at 

45:20-24.) 

 Soon after this discussion, Defendant asked if there was anything that he could do 

to ensure that he got out of jail on bond later that day. (Tr. 4 at 19:1-4; 56:18-23.) 

Defendant offered to give the Agents information about corrupt officers in Sierra Vista 

where both Agents are assigned. (Tr. 3 at 3:2-3; 14:11-17; 19:15-23; 20:20-22; 56:17-

57:18. Tr. 4 at 17:2-11; 19-4-8; 54:6-18; 56:18-57:3; 75:6-7.) At some point in this 

discussion, Agent Clemons asked Defendant why his state charges had been dropped. 

(Tr. 3 at 19:15-17.) As Defendant began to go into the details of how he could help the 

Agents in exchange for being released on bond, the Agents cut him off and told him that 

he should talk to a lawyer first so the Defendant “could be protect[ed]” and the Agents 

would be “covered.” (Tr. 3 at 20:1-5. Tr. 4 at 17:10-17; 56:13-23; 57:4-58:16.) 

 Prior to transporting Defendant from the Cochise County Jail to the federal 

courthouse in Tucson, Arizona, Agents Cox-McClain and Clemons received training to 

learn how to encourage suspects to admit their wrongdoing or otherwise make 

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incriminating statements.2 (Tr. 3 at 33:11-24; Tr. 4 at 29:18-24.) Part of this training 

instructs officers to “lay the groundwork for a conversation” with a suspect or defendant 

by “letting a defendant know he’s in trouble.” (Tr. 3 at 34:11-17.) Further, the training 

instructs them to develop friendly rapport with individuals and offer some sort of help so 

the suspects may be more engaging and offer incriminating statements. (Tr. 3 at 34:18-

35:2, 10-18.) Separate from this training, there was also evidence admitted that when 

suspects cooperate with law enforcement, they frequently incriminate themselves in 

providing their knowledge of criminal activity. (Tr. 3 at 57:24-59:8.) 

II. Motion to Suppress Identification Evidence

 Defendant challenges the identification evidence and asks this Court to suppress 

the lineup evidence and to preclude Ms. Stark from offering an in-court identification. A 

court reviewing a defendant’s motion to suppress identification evidence must answer 

two questions. First, the court must determine whether the procedures used by law 

enforcement to obtain the identification were unnecessarily or impermissibly suggestive. 

Perry v. New Hampshire, 132 S. Ct. 716, 722 (2012). Second, and only if the court 

answers the first question in the affirmative, the court must determine whether the totality 

of the circumstances demonstrates there is “a very substantial likelihood of irreparable 

misidentification.” Id. at 720, 722; see also United States v. Carr, 761 F.3d 1068, 1074 

(9th Cir. 2014) (“An identification procedure is suggestive when it emphasizes the focus 

upon a single individual thereby increasing the likelihood of misidentification.”). 

 Defendant argues Mr. Fasciani and Agent Cox-McClain’s composition and use of 

the photographic lineup was impermissibly suggestive for seven reasons: (1) both Agent 

Cox-McClain and Mr. Fasciani had received no training in the proper considerations and 

procedure to create a lineup that is not impermissibly suggestive; (2) the picture of 

Defendant was the same picture presented to Ms. Stark during the commission of the 

alleged crime; (3) Defendant’s picture was placed in slot number one; (4) Defendant’s 

 

2

 Agent Cox-McClain testified that she received the training within the last year, but nevertheless could not remember the details of the training. (Tr. 4 at 30:10; 31:20.) 

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picture was the only picture with a blue background; (5) Defendant was the only 

individual depicted in the lineup wearing a necklace; (6) the admonition Agent CoxMcClain gave to Ms. Stark before showing her the six-pack was insufficient; and, (7) 

Agent Cox-McClain’s simulation of a ball cap during the photographic lineup was 

improper. 

 This Court finds the details highlighted by Defendant do not render the 

identification process impermissibly suggestive. Simulating the baseball cap that Ms. 

Stark stated the Suspect was wearing has not been shown to be any different than 

requiring persons presented in an in-person lineup to dress as a suspect was seen or say 

something a suspect said. Defendant has provided no authority to persuade this Court 

that the ball cap simulation was impermissibly suggestive in any other way. Similarly, 

Defendant has not shown that Agent Cox-McClain’s admonition to Ms. Stark that Ms. 

Stark may or may not recognize anyone in the lineup was legally insufficient. Cf., Carr, 

761 F.3d at 1076 (lack of any admonition was not sufficient to render an identification 

unduly suggestive). 

 It would be impermissible for Defendant’s picture to be the only picture in the sixpack depicting jewelry if Ms. Stark had told Agent Cox-McClain the Suspect was 

wearing jewelry at the time of the offense. But, Ms. Stark gave no such description 

before she was shown the six-pack. It was not until Ms. Stark testified before Judge 

Rateau that she mentioned she remembered the Suspect wearing a necklace. Because 

Agent Cox-McClain and Mr. Fasciani had no way to know that the Suspect they were 

seeking to identify wore any jewelry, they cannot be said to have created an 

impermissibly suggestive line-up because Defendant is pictured wearing a necklace. 

 Neither the color of the background in Defendant’s picture, nor its placement in 

slot number one caused the lineup to be impermissibly suggestive. There is nothing 

inherently suggestive about being in the first position of a six-pack. And, given the six 

pictures’ varying backgrounds, lighting, and zoom, the fact that the background in 

Defendant’s picture is blue does not improperly suggest that Defendant is the Suspect. 

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 Defendant compares the use of his Arizona ID picture in the six-pack to various 

cases finding undue suggestion. However, those cases all involve a fact that significantly 

distinguishes them from the case at hand. Courts have reviewed various identification 

procedures and found them improperly suggestive when officers create multiple 

opportunities for a witness to view a defendant, in the midst of viewing other individuals 

only once. See, e.g., Foster v. California, 394 U.S. 440, 442-43 (1969); Neil v. Biggers, 

409 U.S. 188, 193-99 (1972) (finding identification procedure was unlawfully suggestive, 

but declining to exclude the identification because it was otherwise reliable). The 

police’s conduct in those cases caused impermissible suggestion because showing a 

witness one picture repeatedly among many other pictures that the witness only sees 

once, can lead that witness to identify a defendant based solely upon the familiarity that 

comes with seeing a picture multiple times. See, e.g., Foster, 394 U.S. at 441-42. But, 

here, the police did not present a picture of Defendant to a witness multiple times. 

Rather, they used an official picture, which they obtained through their standard 

procedure of using Arizona Motor Vehicles Divisions pictures. Accordingly, the 

holdings of cases such as Foster and Biggers have little bearing in this matter. That Ms. 

Stark may have witnessed the same photograph during the commission of the crime is 

similar to her witnessing any other physical characteristic during the commission of the 

crime. This cannot support a finding that the officers’ identification procedures were 

improper. 

 Finally, the Court must address Defendant’s contention that the identification 

procedures were rendered unlawfully suggestive because neither the individual creating 

the six-pack, nor the individual conducting the photographic line-up with Ms. Stark, 

received any training or instruction on lawful means to perform those duties. It concerns 

this Court that despite the many opinions discussing the potential for improper 

identifications, the ATF officers involved have no apparent understanding of the law on 

this matter. While this troublesome ignorance may very well lead to the use of 

impermissibly suggestive procedures, it does not appear that the procedures in this case 

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rose to that level. 

 Because this Court finds the identification procedures were not impermissibly 

suggestive, this Court does not consider whether the circumstances of Ms. Stark’s 

identification are reliable. See, e.g., Perry, 132 S. Ct. at 720-21, 728-29. Accordingly, 

the Court will leave the reliability of Ms. Stark’s testimony and any potential 

identification for the jury to consider after presentation of all relevant evidence. 

III. Motion to Suppress Defendant’s Statements 

 Defendant argues the statements he made during the August 17, 2015 transport 

should be suppressed because Agents Cox-McClain and Clemons did not advise him of 

his rights according to Miranda v. Arizona, 384 U.S. 436 (1966). Miranda requires law 

enforcement to advise any person in their custody of various rights before they begin an 

interrogation. 384 U.S. at 444-445. The Supreme Court defined “interrogation” in 

Rhode Island v. Innis and determined that it was not limited to express questioning, but 

also included questioning’s functional equivalent. See 446 U.S. 291, 300-01 (1980). 

Thus, “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” qualify as “interrogation” and trigger a person’s 

right to hear the warnings detailed in Miranda. Id. at 301. When considering the effect 

that certain conduct or statements would have on a suspect, the Court instructed that the 

focus should be on the suspect’s state of mind and not the officer’s specific intent. Id. at 

301. The Court further elaborated that “where a police practice is designed to elicit an 

incriminating response from the accused, it is unlikely that the practice will not also be 

one which the police should have known was reasonably likely to have that effect.” Id. at 

301 n.7 (emphasis added). 

 It is undisputed that Agents Cox-McClain and Clemons did not inform Defendant 

of the rights described in Miranda. It is also undisputed that Defendant was in custody 

for the two hours while the Agents transported him from the county jail to the federal 

courthouse. All that remains is whether Agents Cox-McClain and Clemons’s conduct 

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rose to the level of “interrogation” as defined by Innis. 

 During the motions hearings conducted by Judge Rateau, Defendant entered 

evidence regarding Agents Cox-McClain and Clemons’s law enforcement training and 

experience. In particular, both Agents attended the Reid Interview School and learned 

various techniques to cause suspects to “admit their wrongdoing” and make 

“incriminating statements.” (Tr. 3 at 33: 16-24.) For example, the Agents were taught to 

emphasize how much trouble a suspect is in to get him or her to talk with the agents. (Id. 

at 34:11-17.) Additionally, the Agents were taught to develop a rapport with suspects so 

that the suspects trust them and are more willing to talk. (Id. at 34:18-35:13.) The 

Agents were also taught that offering to help a suspect may make the suspect more 

engaging with law enforcement. (Id. at 35:14-18.) 

 The record is clear that Agents Cox-McClain and Clemons used these techniques 

with Defendant while they drove the two hours from the Cochise County Jail to the 

Tucson Federal Courthouse. The Agents knew Defendant had been in a county jail for 

several months, had been in and out of custody numerous times before, and that his most 

recent time in custody was the result of a county officer who was being investigated for 

corruption. (Tr. 3 at 36:7-10; Tr. 4 at 17:5-9, 18:2-13.) With this knowledge, Agent 

Cox-McClain engaged with Defendant beyond her standard protocol of explaining the 

process of the day and thereby encouraged Defendant to be friendly, talkative, and 

responsive to the information provided to him. And, in line with their training, 

Defendant responded to the information provided by the Agents with incriminating 

statements. 

 This Court of course does not conclude that offering food in consideration of the 

long day that was before Defendant, or attempting to otherwise be kind to Defendant was 

unlawful or improper. Rather, the evidence shows the Agents should have known that 

their conduct, in particular, beginning an in-depth conversation about the extent of time 

Defendant could serve if convicted as charged and the evidence against him, would 

produce incriminating statements. They should have known this was reasonably likely to 

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elicit incriminating statements because their training instructed them that such conduct 

often elicits incriminating statements. Relevant precedent requires this Court to find that 

this conduct, which was designed to bring out incriminating statements, fits within Innis’s 

definition of “interrogation.” See, e.g., United States v. Theirman, 678 F.2d 1331, 1335 

(9th Cir. 1982) (“Police practices designed to elicit an incriminating response will 

normally be deemed interrogation.”); see also United States v. Booth, 669 F.2d 1231, 

1238 (9th Cir. 1981) (acknowledging a distinction between the “routine gathering of 

background biographical data” or other information attendant to arrest, and statements 

made “under the guise of seeking ‘objective’ or ‘neutral’ information, [but] deliberately 

[intended to] elicit an incriminating statement from a suspect.”). 

 Additionally, it is clear that Agent Cox-McClain’s question as to what “off-paper” 

meant, which was asked in the midst of an in-depth conversation that she initiated about 

Defendant’s charges, also qualifies as “interrogation” of its own right. In United States v. 

Disla, the Ninth Circuit held that an officer should have known that a question posed to 

the suspect that was obviously relevant to an element of the charge would elicit an 

incriminating statement. 805 F.2d 1340, 1347 (9th Cir. 1986) (ultimately concluding the 

trial court’s admission of the statement was harmless). Similarly, here, Agent CoxMcClain’s probe into Defendant’s offered defense for the alleged crime falls within 

Innis’s definition of “interrogation.” Accordingly, even if the Agents’ conduct was not 

designed to elicit an incriminating response from Defendant and thus the functional 

equivalent of interrogation, this Court would still find that any statements made after 

Agent Cox-McClain questioned Defendant about being “off-paper” must be suppressed. 

This Court thus grants Defendant’s Motion to Suppress as to his statements made during 

transport. 

. . . 

. . . 

. . . 

. . . 

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 Accordingly, 

IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 97) is 

rejected. 

IT IS FURTHER ORDERED Defendant’s Motion to Suppress Identification 

Evidence (Doc. 36) is denied. 

IT IS FURTHER ORDERED Defendant’s Motion to Suppress Statements (Doc. 

35) is granted. 

 Dated this 3rd day of June, 2016. 

Honorable Rosemary Márquez

United States District Judge

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