United States of America v. Calvert Les Woody

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
CALVERT LES WOODY,
Defendant - Appellee.
No. 15-10223
D.C. No. 3:13-cr-08093-NVW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
The government appeals the district court’s order suppressing incriminating
statements made by Calvert Woody, a Navajo Indian, who is charged with two
counts of abusive sexual contact, and two counts of aggravated sexual abuse of a
FILED
JUN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 6 --

child, in violation of 18 U.S.C. §§ 2244(a)(5) and 2241(c). We have jurisdiction
under 18 U.S.C. § 3731, and we reverse.
I
The district court’s factual findings regarding “historical trauma” and the
impact of Native American culture on the voluntariness of Woody’s statements
were clearly erroneous. A “‘finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’” Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).
Here, the district court relied on expert testimony from Dr. David McIntyre,
who opined that Native Americans are susceptible to coercion during questioning
because of cultural differences and “historical trauma.” Yet during cross-
examination, Dr. McIntyre acknowledged that his “very broad generalizations
about Native Americans” could not be attributed to Woody specifically and
conceded that Woody had not been diagnosed with historical trauma because
“[t]here is no such diagnosis.” Because these characteristics could not be attributed
to Woody individually, the district court erred in relying on them to support its
finding that Woody’s will had been overborne.
2

-- 2 of 6 --

Furthermore, Dr. McIntyre opined merely that cultural differences and
historical trauma “may have affected the voluntariness of Mr. Woody’s
admission.” Thus, even if Dr. McIntyre’s opinions regarding cultural differences
and historical trauma could be attributed to Woody individually, the district court’s
reliance on such evidence was in error because the impact such attributes had on
the voluntariness of Woody’s statements remained only speculative.
II
In considering the totality of the circumstances, the district court’s factual
findings did not support its ruling to suppress Woody’s incriminating statements.
See Dickerson v. United States, 530 U.S. 428, 434 (2000); Doody v. Ryan, 649
F.3d 986, 1008 (9th Cir. 2011) (en banc). Woody agreed to the interview and
arrived of his own volition. Agent Priestino testified that Woody confirmed Agent
Fuller’s account of the polygraph session. Woody acknowledged and waived his
rights before questioning. Woody requested a ride to his vehicle following the
session. And, perhaps most importantly, the questioning took place in a non-
custodial setting.
In contrast, Woody’s “low average” IQ of 82 did not constitute an
intellectual disability and therefore is of limited significance in the analysis by
itself, cf. United States v. Preston, 751 F.3d 1008, 1020 (9th Cir. 2014) (en banc)
3

-- 3 of 6 --

(holding that district court erred in failing to suppress statements of intellectually
disabled 18-year-old man with an IQ of 65), and “[n]othing in the record . . .
suggests that [Agent Fuller’s] failure to record the interview influenced [Woody’s]
admission,” United States v. Haswood, 350 F.3d 1024, 1028–29 (9th Cir. 2003);
see United States v. Romo-Chavez, 681 F.3d 955, 961 n.5 (9th Cir. 2012)
(“[S]uppression is not warranted simply because the government fails to record an
interview.”).
In weighing the evidence before the district court and considering it in its
entirety, see Preston, 751 F.3d at 1017; Doody, 649 F.3d at 1008, the totality of the
circumstances should have compelled a conclusion that it was more likely than not
that Woody’s statements were voluntary. See Lego v. Twomey, 404 U.S. 477, 489
(1972). The district court therefore erred in suppressing Woody’s incriminating
statements.
REVERSED.
4

-- 4 of 6 --

United States v. Woody, 15-10223
CHRISTEN, Circuit Judge, concurring:
I concur in the judgment because I agree that Dr. McIntyre was unable to tie
his testimony regarding cultural factors to Woody specifically, and that without Dr.
McIntyre’s opinion the totality of the circumstances do not support the district
court’s ruling to suppress Woody’s incriminating statements. I write separately to
express my concern regarding the FBI’s failure to record Woody’s examination.
The conscientious district court judge in this case tried to follow our recent
decision in United States v. Preston, where we emphasized the need for courts to
consider “the totality of all the surrounding circumstances—both the characteristics
of the accused and the details of the interrogation.” United States v. Preston, 751
F.3d 1008, 1016 (9th Cir. 2014) (en banc) (quoting Dickerson v. United States, 530
U.S. 428, 434 (2000)). In Preston, we had the benefit of audiotapes and a
transcript of the interrogation. See id. at 1020. Here, pursuant to the FBI’s internal
policy, we do not have a record of Woody’s polygraph examination. This
dramatically hindered the district court’s and our ability to review the totality of
the circumstances surrounding his admissions. According to Agent Fuller, the FBI
has amended its policy to permit recording an examinee’s reading and signing of
the advice of rights and consent forms, but the amended policy requires agents to
FILED
JUN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1

-- 5 of 6 --

then affirmatively turn off the recording equipment for the examination itself. The
district court was troubled by this, and I am too.
The district court was free to consider whether the FBI’s failure to record
“might support a larger inference that [Agent Fuller’s] testimony did not accurately
portray the circumstances surrounding [Woody’s] confession.” See United States
v. Wright, 625 F.3d 583, 604 n.10 (9th Cir. 2010) (quoting United States v. Yunis,
859 F.2d 953, 961 (D.C. Cir. 1988)), superseded by statute on other grounds as
recognized by United States v. Brown, 785 F.3d 1337, 1351 (9th Cir.2015). But
even with the inferences the district court drew from the FBI’s failure to record, the
totality of the circumstances does not support the court’s suppression order. On
the record presented, I agree we must reverse.
2

-- 6 of 6 --