United States Court of Appeals

For the First Circuit 

No. 13-2204 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

VICTOR MANUEL FELIZ, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Daniel R. Domínguez, U.S. District Judge] 

Before 

Torruella, Lynch, and Barron, 

Circuit Judges. 

Barry S. Pollack, with whom Pollack Solomon Duffy LLP was on 

brief, for appellant. 

María L. Montañez-Concepción, Assistant United States 

Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States 

Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, 

Chief, Appellate Division, and Thomas F. Klumper, Assistant United 

States Attorney, were on brief, for appellee. 

July 16, 2015 
- 2 - 

LYNCH, Circuit Judge. At issue are the proper procedures 

for determining whether a confession is voluntary under Jackson v. 

Denno, 378 U.S. 368 (1964). The procedure followed by the trial 

court was based on an error, so we vacate the defendant's 

conviction and remand for further proceedings consistent with this 

opinion. See Sims v. Georgia, 385 U.S. 538, 544 (1967). Although 

issues under Miranda v. Arizona, 384 U.S. 436 (1966), existed 

earlier, they are not raised in this appeal. 

Victor Feliz, a youth with no prior record, was convicted 

in December 2012 of possession of a firearm in furtherance of a 

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), 

and possession with intent to distribute cocaine base, in violation 

of 21 U.S.C. § 841(a)(1), (b)(1)(C). His conviction was based 

largely on two written confessions. Before trial, Feliz moved to 

suppress the confessions as involuntary, being induced by threats 

made to him as to repercussions to his mother and his young 

siblings if he did not confess. 

The magistrate judge heard testimony from two police 

officers that the confessions were freely made, and, contrarily, 

from Feliz and his mother that the government had dictated to him 

his confessions, which he signed, after officers threatened his 

mother with deportation and his siblings with being put into state 
- 3 - 

custody. The magistrate judge recommended that the confessions be 

suppressed as involuntary. As relevant here, the government filed 

objections as to the magistrate judge's factual finding that the 

statements were dictated and the conclusion that the statements 

were involuntary. 

The district court conducted a de novo hearing. There, 

the district court excluded the defense testimony about the 

circumstances of the confessions involving police pressure as 

hearsay. It then made a series of ambiguous statements to the 

effect that any issue about credibility going to the voluntariness 

of a confession was for the jury, not for the judge, to decide. 

Then, about two months later, it directly ruled and stated that it 

admitted the confessions into evidence, because, in its view, the 

record before it contained no evidence of coercion (having excluded 

that evidence on hearsay grounds). On review, we cannot conclude 

that the confessions were voluntary, because the district court 

erroneously excluded from consideration the critical evidence to 

the contrary. We vacate and remand.1

                                                             1 In light of this disposition, we do not reach Feliz's 

claim of sentencing error. 
- 4 - 

I. 

A. Factual Background 

On February 3, 2012, at 5:45 a.m., Puerto Rico police 

executed a search warrant2 at a home in Dorado, Puerto Rico. Five 

officers arrived at the house, where they found Feliz's mother, 

stepfather, minor sisters, and infant brother. Feliz himself, an 

eighteen-year-old with no criminal record, was not present. 

Feliz's stepfather Luis Rivera, the owner of the house, identified 

the bedroom in which Feliz had last stayed. The officers testified 

that they found a loaded pistol, more ammunition, eighty-seven 

capsules of cocaine base, and $1,384 in cash in the bedroom. They 

arrested Rivera, Feliz's stepfather, for possessing a firearm 

without a license. They then transported Rivera and the rest of 

the family, including the two-year-old infant, to the police 

station.

At this point, the accounts of the police officers and 

Feliz's family diverge. According to the police officers, as the 

                                                             2 The search warrant was based on a tip from an informant 

and subsequent observation of Feliz at the home by Puerto Rico 

police officers. In the district court, Feliz sought a Franks 

hearing, arguing that the affidavit accompanying the search 

warrant contained material facts that were false or made with 

reckless disregard for their truth. See Franks v. Delaware, 438 

U.S. 154 (1978). The district court denied the motion on September 

15, 2012, and Feliz has not appealed that decision. 
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officers got into their patrol cars, Feliz appeared and approached 

the house. One of the officers, Agent José Vélez, left his car, 

gave Feliz a Miranda warning, arrested him, and drove him to the 

police station. At the station, Agent Vélez again gave Feliz the 

Miranda warnings, this time verbally and in writing. Feliz signed 

that he understood his Miranda rights, and then, around 7:30 a.m., 

the police say he wrote a confession on the reverse side of the 

Miranda form. The confession stated that Feliz owned the gun, 

drugs, and money, and that his family did not know of them. Feliz 

also signed a property seizure form. 

The police officers say they then took Feliz to the 

office of the federal Bureau of Alcohol, Tobacco, and Firearms 

(ATF) in San Juan for DNA testing. Agent José López, an officer 

of the Puerto Rico police participating in an ATF task force, 

conducted the testing. Feliz began crying and confessing again. 

Agent López immediately gave Feliz a verbal Miranda warning, told 

Feliz to stop, and had Feliz read and sign a written Miranda form. 

Feliz then again wrote a confession on the reverse side of the 

Miranda form, around 2:30 p.m. This second, more detailed 

confession explained that Feliz obtained the firearm for 

protection while selling drugs, and that he began selling drugs to 

provide for his ten-month-old son while Feliz was unemployed.
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Feliz and his mother, Hortencia Feliz, recounted a 

different tale. According to them, after the search of the house, 

the police officers told Feliz's mother to call Feliz. She did. 

Feliz missed her call, but soon returned it. One of the officers 

took the phone from his mother to speak with Feliz. The officer 

told Feliz to turn himself in, because "all of that" was his. The 

officer also threatened Feliz that, if he refused to turn himself 

in, his siblings would be sent to the custody of the Department of 

Family Affairs. Feliz's mother was audible to Feliz, crying in 

the background. Hortencia confirmed his account.

Feliz turned himself in to the police at the station, 

where officers walked him past his family and into an interrogation 

room. One of the officers told him that if he failed to confess, 

his mother, a Dominican national, would be deported. Agent Vélez 

then dictated the first confession to Feliz. After Feliz wrote 

out the confession, Agent Vélez told Feliz to sign the Miranda 

form, presenting it as an afterthought and without giving Feliz 

the opportunity to read it. 

Later, in the ATF office's interrogation room, Agent 

López threatened Feliz that if he did not confess again, his mother 

would be deported and sisters removed to the custody of the state. 
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Agent López dictated the second, more detailed confession to Feliz. 

Feliz signed the second Miranda waiver.

B. Magistrate Judge Proceedings 

The government filed a criminal complaint against Feliz 

on February 3, 2012, charging him with possession of a firearm in 

furtherance of a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c), and possession with intent to distribute cocaine base, 

in violation of 21 U.S.C. § 841(a)(1). A grand jury indicted Feliz 

on the same two counts, along with a forfeiture allegation, on 

March 1, 2012. Feliz entered a plea of not guilty.

On April 16, 2012, Feliz moved to suppress the Miranda 

warnings and waiver form, his statements written on the back of 

those forms, and the evidence seized from his home, which he argued 

had been planted by the police. The district court referred the 

motion to a magistrate judge on May 4, 2012. 

On June 7, 2012, the magistrate judge held a suppression 

hearing. Agent Vélez and Agent López testified for the government, 

and Feliz, Rivera, and Feliz's mother Hortencia testified for the 

defense. Feliz's sister also testified for the defense, saying 

that she saw the police officers bring a black bag into the house 

on the day of the search.
- 8 - 

On June 20, 2012, the magistrate judge issued a Report 

and Recommendation. The judge found that, "after observing their 

demeanor and noting their consistency, as well as that of the other 

witnesses," "the testimony of Defendant Feliz and his family 

members" was credible. The magistrate judge credited that 

testimony over the testimony of the police officers.

Applying the law to the version of events offered by the 

Feliz family, the magistrate judge recommended that both 

confessions be suppressed because neither was made voluntarily. 

Feliz did not waive his Miranda rights before making the first 

statement. He also made the statement under "intense psychological 

pressures": the threatened deportation of his mother and removal 

of his sisters from their family, and the fact that his entire 

family was in police custody and at the police station. The second 

confession was involuntary for the same reasons.

The magistrate judge recommended denial of the motion to 

suppress the physical evidence, concluding that "whether that 

evidence was possessed or planted is a question for the jury." 

However, the judge "doubt[ed] whether Feliz ever possessed any of 

it." The Feliz family's testimony indicated that Feliz had not 

lived in the house for months prior to the search, that his younger 

sister lived in the room at the time of the search, that the agents 
- 9 - 

"found" the gun in a laundry hamper minutes after entering the 

home and outside the presence of any of Feliz's family, and that 

the agents took no photographs of the crime scene and did not test 

the gun or drugs for fingerprints. Feliz's mother and sister each 

testified that they saw the police bring a duffle bag into the 

house.

Feliz did not object to the Report and Recommendation, 

but the government did on July 3, 2012. The government objected 

to the factual findings that Feliz's statements were made before 

he received the Miranda warnings form and simply followed the 

dictation of the police officers. It also objected to the finding 

that Feliz did not live at the house in Dorado, Puerto Rico. The 

government concordantly objected to the conclusion that the 

confessions were made involuntarily and should be suppressed.

C. District Court Proceedings 

The district judge held a de novo hearing on July 6, 

2012. The district court heard from Agent Vélez and Agent López, 

as well as Rivera and, initially, Hortencia. Hortencia began 

describing the first threat by the agent over the phone to her 

son, that an officer told Feliz that his siblings were "all going 

to the Department of the Family." The district court sustained a 

hearsay objection and cut off the line of questioning. The 
- 10 - 

district court said, "This is hearsay. . . . [I]f you want that 

proof to come in, you have to Subpoena the police." The district 

court rejected defense counsel's attempts to argue that a hearsay 

exception applied, saying, "If you want all these hearsay 

statements to come in, you have to Subpoena the police." In its 

view, the defense should have subpoenaed the police officer who 

allegedly spoke to Feliz by phone and had not testified at either 

hearing. The court similarly excluded Hortencia's account of the 

police officer's dealings with Feliz at the police station as 

hearsay. 

When the defense tried to call Feliz's sister to testify, 

the government objected on relevance grounds, because her 

testimony would be relevant to whether the drugs were planted, but 

not to whether Feliz's statements were voluntary. The district 

court observed that Feliz did not object to the magistrate judge's 

decision on the physical evidence. At the conclusion of that 

colloquy, the district judge said: 

The issue here you are fighting is the 

statements of the defendant. And the evidence 

that I am hearing puts the so-called statement 

of the defendant in the realm of credibility. 

And if it is in the realm of credibility, this 

Judge cannot decide it. That is going to 

belong to the jury. . . . By the evidence I 

have heard, you can produce seven witnesses 

here that say, no, he didn't give that 
- 11 - 

statement. And the United States will produce 

seven more that say, yes, it is 

voluntary. . . . I cannot suppress a matter 

that is in the realm of credibility. (emphases 

added).

Defense counsel replied, "Then, Judge, at this time we rest and we 

move forward." Neither Feliz's sister nor Feliz himself testified 

at the de novo hearing. 

The judge immediately concluded: "Well, if that is the 

case, then the Judge finds that the matter of the statements of 

the defendants fall in the realm of credibility. And, therefore, 

they belong to the jury. . . . This doesn't belong to me." 

(emphasis added). The judge did not make an express finding at 

the hearing that the confession was made voluntarily. 

The district court then considered Feliz's bail. On 

June 8, 2012, the magistrate judge had reviewed Feliz's bail and 

released him on a $10,000 bond. The district court had held a de 

novo bail hearing on June 20. After hearing more evidence at the 

suppression hearing, the district court concluded that Feliz 

should be detained. When discussing the weight of the evidence, 

the district court said that the confessions seemed "valid because 

they have too much detail."

On September 15, 2012, the district court entered a 

written order denying the suppression motion. It stated that "no 
- 12 - 

evidence was submitted that Feliz was coerced by the state police." 

Evidence to the contrary on which the magistrate judge relied "was 

not reiterated in the hearing before the undersigned." The court 

also noted that the confessions signed by Feliz, including a 

Miranda warning, were written in his own handwriting, and the 

second was "replete with details." The court added that phone 

calls Feliz made from prison suggested a "consciousness of guilt," 

so it found that "the credibility of the police officers executing 

the search warrant is . . . much more reliable and trustworthy 

than Feliz' [sic] mother's and step-father's version of the 

relevant facts."

Nonetheless, the court continued, "there remains an 

issue of credibility," so "the Court allows Feliz, if he so 

chooses, to present the issue of voluntariness of his confession 

to the jury at trial." 

Feliz's jury trial began on December 3, 2012. On 

December 10, Feliz moved in limine to exclude his confessions. In 

court the next day, the court began discussing the motion by saying 

that "whether this was a confession that was coerced or not 

coerced, that is an issue [] for the jury to decide." Defense 

counsel explained that he filed the second motion "because the 

record of the case is not clear as to whether or not [the district 
- 13 - 

court] actually overturned the report and recommendations, which 

we understand that [the district court] did, but it is not shown 

on the record." The district court replied, 

The Court, I thought, made it very clear that 

I thought that my impression was that the 

confession was not coerced, but I think that 

this is an issue of credibility, which may be 

repeated to the jury. All right? That is my 

determination. . . . I even made an analysis 

of certain letters that I thought were 

repeated constantly in the same fashion, 

meaning to me that there was no coercion.

At trial, the district court admitted the confessions 

and instructed the jury to "decide (1) whether Victor Manuel Feliz 

made the statement[s], and (2) if so, how much weight to give 

[them]."

On December 18, 2012, the jury convicted Feliz on both 

counts. On September 3, 2013, the district court sentenced Feliz 

to eighty-seven months imprisonment: sixty months on Count 1 and 

twenty-seven months on Count 2, served consecutively, along with 

five years of supervised release. This appeal followed. 

II. 

Feliz challenges the district court's denial of his 

motion to suppress his statements as involuntary. We review the 

district court's factual findings and credibility determinations 
- 14 - 

for clear error, and its conclusions of law de novo. United States 

v. Awer, 770 F.3d 83, 89 (1st Cir. 2014). 

Feliz offers two arguments. First, he argues the 

district court did not actually decide the voluntariness of the 

confessions as it was required to do. Second, he argues that the 

district court's later written voluntariness decision cannot be 

sustained. Because the district court belatedly did rule the 

statements were voluntary, we focus ultimately on the second point. 

A. Did the District Court Decide the Issue? 

The Constitution prohibits admission of a coerced 

confession to prove a defendant's guilt. United States v. Jacques, 

744 F.3d 804, 809 (1st Cir. 2014) (citing Dickerson v. United 

States, 530 U.S. 428, 433 (2000)); United States v. Faulkingham, 

295 F.3d 85, 90 (1st Cir. 2002). Accordingly, in federal courts, 

trial judges are tasked with determining the voluntariness of a 

conviction before trial. See 18 U.S.C. § 3501(a); Crane v. 

Kentucky, 476 U.S. 683, 687-88 (1986); United States v. Hughes, 

640 F.3d 428, 438 (1st Cir. 2011); see also Jackson, 378 U.S. at 

376-79. The voluntariness inquiry probes "the physical and 

psychological environment that yielded the confession," a "purely 

legal question." Crane, 476 U.S. at 688-89. The trial judge 

considers "the totality of the circumstances, including both the 
- 15 - 

nature of the police activity and the defendant's situation" to 

decide "whether the will of the defendant had been overborne so 

that the statement was not his free and voluntary act." Jacques, 

744 F.3d at 809 (citations and internal quotation marks omitted). 

This decision is for the judge because a jury "may find 

it difficult to understand the policy forbidding reliance upon a 

coerced, but true, confession." Jackson, 378 U.S. at 382. As the 

Supreme Court has explained, "[t]hat a trustworthy confession must 

also be voluntary if it is to be used at all, generates natural 

and potent pressure to find it voluntary." Id. Accordingly, 

letting a jury make both the voluntariness and credibility findings 

risks letting "matters pertaining to the defendant's guilt . . . 

infect the jury's findings of fact bearing upon voluntariness, as 

well as its conclusion upon that issue itself." Id. at 383; see 

Lego v. Twomey, 404 U.S. 477, 485 (1972) ("[W]e feared [in Jackson] 

that the reliability and truthfulness of even coerced confessions 

could impermissibly influence a jury's judgment as to 

voluntariness."). The burden of proof is on the prosecution to 

show by a preponderance of the evidence to the judge that the 

confession was voluntary. See Lego, 404 U.S. at 489; United States 

v. Hufstetler, 782 F.3d 19, 22 (1st Cir. 2015). 
- 16 - 

Once the trial judge renders a "clear-cut determination 

that the confession . . . was in fact voluntary," the defendant 

generally retains the freedom to "familiarize a jury with 

circumstances that attend the taking of his confession, including 

facts bearing upon its weight and voluntariness." Lego 404 U.S. 

at 483, 486. That is so because the jury is empowered to "assess 

the truthfulness of confessions," id. at 485 -- their credibility 

-- as part of their decision on "the ultimate factual issue of the 

defendant's guilt or innocence." Crane, 476 U.S. at 689; see 18 

U.S.C. § 3501(a); Fed. R. Evid. 104(e). 

Feliz argues that the district judge never made the 

required finding of voluntariness, instead deferring the issue for 

the jury. The government contests Feliz's reading of the record, 

but it does not argue that such a deferral would be lawful.

The magistrate judge recommended that the district judge 

find that the confessions were involuntary. The district judge 

conducted a de novo hearing and exercised his authority to make a 

de novo determination, as the law permits. See 28 U.S.C. 

§ 636(b)(1); United States v. Lawlor, 406 F.3d 37, 40 (1st Cir. 

2005) (citing United States v. Raddatz, 477 U.S. 667, 676 (1980)). 

At the conclusion of the hearing, the district judge said only 

that "the matter of the statements of the defendant fall[s] in the 
- 17 - 

realm of credibility," without making a voluntariness finding. In 

his written opinion denying the motion to suppress, the district 

judge concluded that there was no evidence of coercion, but also 

that "there remains an issue of credibility," so Feliz may "present 

the issue of the voluntariness of the confession to the jury at 

trial." The district court only clearly explained that the 

confessions were voluntary when denying Feliz's motion in limine 

at trial.

The district court's decisions are not a model of 

clarity. And we cannot merely extrapolate from the fact that the 

district court denied the suppression motion: that fact could mean 

either that the court made the proper voluntariness finding or 

that the court made no finding and deferred the issue to the jury. 

Cf. Jackson, 378 U.S. at 378-80. Similarly, while the district 

court accurately observed that the jury may decide issues of 

credibility, it also used the term "credibility" to describe its 

own analysis. Any rule that requires the voluntariness of a 

confession to be decided by the jury and not the judge when a 

witness's credibility is at issue is erroneous under Jackson v. 

Denno. 

Only immediately before the opening statements at trial 

did the district court unequivocally conclude that the confessions 
- 18 - 

were not coerced -- meaning, presumably, that they were voluntary. 

But that was enough to provide a sufficiently clear ruling before 

the opening statements at trial. "Although the judge need not 

make formal findings of fact or write an opinion, his conclusion 

that the confession is voluntary must appear from the record with 

unmistakable clarity." Sims, 385 U.S. at 544. That ruling came 

at the defendant's request, and Feliz has not suggested that he 

was prejudiced in any way by the ambiguity persisting between the 

September 15, 2012, written order and the December 11, 2012, order 

at trial. 

B. The Trial Judge's Ruling That the Confessions Were Voluntary 

"The voluntariness of a defendant's confession is a 

question of law meriting de novo review." Jacques, 744 F.3d at 

809. We bypass the question of whether defendant appropriately 

preserved his objection to the district court's voluntariness 

finding; the standards for plain error have been met. The error 

was obvious; it prejudiced Feliz, since the district court's basis 

for denying the motion to suppress was that no evidence of coercion 

was submitted at the de novo hearing; and it seriously impugned 

the fairness, integrity, or reputation of the proceeding. See 

United States v. Correa-Osorio, 784 F.3d 11, 17-18 (1st Cir. 2015). 
- 19 - 

The government argues only in a perfunctory footnote 

that the confession would be voluntary even under the events as 

described by Feliz's family. So the voluntariness issue hinges on 

the record and the explanation provided by the district court. 

The district court curtailed the record before it when 

it excluded as hearsay Hortencia's testimony that she heard a 

police officer threaten Feliz with the deportation of his mother 

and state custody for his siblings. The court never evaluated the 

two competing accounts, because it ruled that only one account was 

before it. 

This was plain error. Hearsay is a statement "the 

declarant does not make while testifying at the current trial or 

hearing," and "a party offers in evidence to prove the truth of 

the matter asserted in the statement." Fed. R. Evid. 801(c). 

Feliz did not attempt to introduce testimony of the officers' 

threats for the truth of the matter asserted. Hortencia testified, 

for example, that the officer said "your siblings are all going to 

the Department of Family." Before the magistrate judge, Hortencia 

testified that an officer said to Feliz, "We are going to deport 

your mother." She also testified there that the officers told 

Feliz that if he did not turn himself in, "they were going to 

deport me and they were going to call the Department of the Family 
- 20 - 

to take the boy and girls." That testimony would not show that 

Feliz's siblings would truly be sent to the Department of the 

Family if he did not turn himself into police custody, or that she 

would have been deported. Rather, the testimony, if credible, 

would show the fact that the police officer made the threat to 

Feliz, a fact within Hortencia's personal knowledge. See Fed. R. 

Evid. 801(c) advisory committee's note ("If 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."); United States v. Bowles, 751 F.3d 35, 

40 (1st Cir. 2014) (characterizing threats as "verbal acts that 

are not hearsay" (citing United States v. Diaz, 597 F.3d 56, 65 

n.9 (1st Cir. 2010))); United States v. Bellomo, 176 F.3d 580, 586 

(2d Cir. 1999) ("Statements offered as evidence of . . . 

threats . . ., rather than for the truth of the matter asserted 

therein, are not hearsay."); see also United States v. Walker, 665 

F.3d 212, 230-31 (1st Cir. 2011). 

The government falls back to its misunderstanding of the 

hornbook rule of evidence that an out-of-court statement may be 

offered to "show the effect of the words spoken on the listener." 

See United States v. Bailey, 270 F.3d 83, 87 (1st Cir. 2001) 

(citing 5 Weinstein's Federal Evidence § 801.03[4] (2d ed. 1999)). 
- 21 - 

Since Hortencia was not the intended recipient of the threat, the 

argument goes, she could not testify to it. 

That is incorrect. The testimony here was offered to 

show the effect of the words spoken on the listener, Feliz. Even 

though Hortencia was not the target of the threat, she could still 

testify that the officer made the threatening statement and it was 

heard by Feliz. The factfinder can then infer the effect on Feliz 

from that testimony. See, e.g., Biegas v. Quickway Carriers, Inc., 

573 F.3d 365, 379 (6th Cir. 2009); United States v. Lambinus, 747 

F.2d 592, 597 (10th Cir. 1984); United States v. Cline, 570 F.2d 

731, 734-35 (8th Cir. 1978). The government offers no case -- and 

we are aware of none -- suggesting that only the listener (and not 

an independent over-hearer of a conversation) may testify to an 

out-of-court statement that is relevant to the listener's state of 

mind. In any event, the formulation "effect of the words on the 

listener" is not a rigid hearsay exception, but an example of a 

"more common type[] of nonhearsay utterance[]." 2 McCormick on 

Evidence § 249 (7th ed. 2013). As we have already explained, this 

statement is a nonhearsay utterance because it is not being used 

to prove the truth of the matter asserted.3

                                                             3 There is no safe harbor for the government in the fact 

that the Federal Rules of Evidence do not generally apply in 
- 22 - 

Given that the improperly excluded testimony was both 

plausible and significant in this case, the proper course was for 

the district court to admit the evidence and "give it such weight 

as his judgment and experience counsel." United States v. Matlock, 

415 U.S. 164, 175 (1974). In the written opinion, the district 

court simply said that there was "no evidence" of coercion and, 

while "[t]here may have been evidence" of coercion before the 

magistrate judge, "similar evidence was not reiterated in the 

hearing before the undersigned."4 

In light of these missteps, and our inability to say 

they were harmless, we remand to a different district court judge 

to conduct a new suppression hearing. See Sims, 385 U.S. at 544; 

see also Matlock, 415 U.S. at 177-78. "Of course, if the [trial] 

court, at an evidentiary hearing, redetermines the facts and 

                                                            

suppression hearings, see United States v. Bunnell, 280 F.3d 46, 

49 (1st Cir. 2002). If anything, the inapplicability of the 

Federal Rules of Evidence provide further support for why Hortencia 

should have been permitted to testify about what she heard, because 

the evidence was clearly relevant.

4 The government argues that any error in excluding 

Hortencia's testimony was harmless, because the judge found the 

police officers to be generally more credible than Feliz's mother 

and step-father. But the district court did not find Feliz's 

family entirely incredible, and it did not make any finding or 

give any reason for why it would disbelieve them had they testified 

on the subject of the voluntariness of Feliz's confessions. 

Rather, it said there was no evidence of coercion. 
- 23 - 

decides that [Feliz's] confession was involuntary, there must be 

a new trial on guilt or innocence without the confession's being 

admitted in evidence." Jackson, 378 U.S. at 394. 

III. 

We vacate the order denying the motion to suppress, 

vacate the judgment of conviction, and remand for further 

proceedings consistent with this opinion. Upon remand, the case 

shall be assigned to a different judge for a new proceeding. 

So ordered.