Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`November 19, 2024
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellant,
`
`v.
`
`
`
`SANTIAGO MARTINEZ,
`
` Defendant - Appellee.
`_________________________________
`
`
`
`
`
`No. 23-2193
`No. 24-2002
`No. 24-2004
`
`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
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`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
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`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
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`

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

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`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
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`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
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`

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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 5
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`Per Martinez, in the early hours of November 13, he exited the vehicle
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`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
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`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
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`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
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`

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

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

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

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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 9
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`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
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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 10
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`
`
`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
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`

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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 11
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`2
`
`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
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`end.’” Aplt. App. II at 95. When Agent Coyle finished the pre-test interview,
`
`she offered Martinez the opportunity to use the restroom.
`
`3
`
`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
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`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
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`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
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`

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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 12
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`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.
`
`4
`
`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
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`

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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 13
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`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
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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 14
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`[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
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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 15
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`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:
`
`Martinez
`
`
`
`Suazo
`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
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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 16
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`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
`
`I’m done.
`
`We’re done
`
`
`Ok so you told we’re officially
`done? Because we are.
`
`
`
`Id. at 132.
`
`Martinez
`
`
`
`
`I’m walking back home
`Already told my parents
`
`
`That you got all hurt because I
`was smoking a cigarette
`
`On August 28, 2021 (77 days before her death), Suazo and Martinez
`
`exchanged the following text messages:
`
`Suazo
`Your sister and I tried helping you
`out and you denied that so… night
`Stop calling me with threats
`
`
`
`Martinez
`
`
`
`
`Walking home
`I’m outside
`
`16
`
`
`Id.
`
`
`
`

`

`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 17
`
`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
`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.
`
`
`
`Id. at 132–33.
`
`Martinez
`
`
`
`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
`
`On September 26, 2021 (48 days before Suazo’s death), Suazo and
`
`Martinez exchanged these text messages:
`
`
`
`17
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`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 18
`
`Martinez
`
`
`
`
`
`I walked all
`
`this
`
`Whatever
`morning
`
`
`Whatever go ahead
`
`
`Sure you did. Look at all my texts
`to you!?!
`
`
`You’d be the same damn way
`Whatever
`Yeah you don’t need me
`
`Obviously you didn’t care last
`night
`Bye!
`Uh huh sure you didn’t fucking
`care
`
`
`
`
`Yeah helped by me walking this
`morning
`
`
`Suazo
`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
`
`
`
`We’re done. I’m not going to argue
`with
`someone who
`doesn’t
`appreciate me. I’m blocking you.
`
`I’ve been trying to reach you all
`night
`
`
`
`Ok, fine, we’re done. Im done
`putting up with you and your
`behavior. I don’t need this or you.
`
`
`
`Yea I don’t. Bye.
`
`
`
`
`
`So bye
`I’m done arguing to a brick wall.
`Bye. We’re done.
`
`
`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
`
`
`I don’t need your aggression, I’ll do
`myself and be out of your way.
`
`
`Id. at 133–34.
`
`Yeah I’ll take it out
`
`
`On November 5, 2021 (eight days before Suazo’s death), Suazo and
`
`Martinez exchanged the following text messages:
`
`Suazo
`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.
`
`
`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.
`
`
`It’s both of our attitudes, when I
`helped you find your phone you
`could have said “thank you.”
`
`19
`
`
`
`Martinez
`
`
`
`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.
`
`
`I wasn’t the one getting mad this
`morning. We’ll if your not happy
`then
`
`
`
`

`

`Appellate Case: 23-2193 Document: 60-1 Date Filed: 11/19/2024 Page: 20
`
`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.
`
`
`
`
`
`Id. at 134.
`
`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]
`
`Lastly, on November 5, 2021 (seven days before Suazo’s death), Suazo
`
`and Martinez exchanged the following text messages:
`
`Suazo
`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.
`
`
`
`Id. at 174.
`
`
`
`20
`
`Martinez
`
`
`
`
`
`I don’t think that was the cops
`looked
`like my uncles brown
`truck.
`
`

`

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