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United States v. Pena.

No. 23-2047. 9/5/2024. D.N.M. Judge Carson. Suspect’s Confession—Voluntariness—Fifth Amendment—Law Enforcement Conduct—Inducing a Minor to Engage in Sexual Activity—Inducing a Minor to Engage in Sexually Explicit Conduct to Produce a Visual Depiction.

September 5, 2024


Pena initiated an online, romantic relationship with Jane Doe, his then-15-year-old daughter. Pena used the alias “Jaime Peres” to communicate with Jane over Facebook Messenger. After the online relationship had continued for about a year, “Jaime” changed his tactics and told Jane that he was a cartel member and that the cartel would kidnap and behead her father unless Jane filmed herself having sex with her father. Jane complied with the demand and then reported the incidents to her school resource officer, who contacted law enforcement. Pena participated in a Mirandized interview with law enforcement during which he admitted that he was “Jaime Peres” and confessed that he had sexual intercourse with Jane after threatening her as “Jaime.” Pena moved to suppress his confession as a compelled involuntary confession, and the district court denied the motion. Pena was convicted of one count of inducing his minor daughter to engage in sexual activity in violation of 18 USC § 2422(b) and two counts of inducing his minor daughter to engage in sexually explicit conduct to produce a visual depiction in violation of 18 USC § 2251(a).

On appeal, Pena argued that the district court erred by denying his motion to suppress because it was based on erroneous factual findings. However, Pena failed to show that the district court clearly erred in its factfinding.

Pena also contended that law enforcement compelled his confession by coercive conduct because they spoke in loud voices, questioned Pena for almost four hours, implied that his children might commit suicide because of his actions, and told him there was overwhelming evidence against him. The Tenth Circuit agreed with the district court that law enforcement’s conduct was sometimes “uncivil” and “troubling.” But a suspect’s confession violates the Fifth Amendment only where law enforcement overbears a defendant’s free will and critically impairs the defendant’s capacity for self-determination. Here, after being Mirandized, Pena confessed that he had induced his minor daughter into having and recording sexual intercourse with him. Notwithstanding law enforcement’s use of various tactics to encourage Pena’s confession, under the totality of the circumstances, the government demonstrated by a preponderance of the evidence that Pena confessed of his own free will. Further, even if Pena’s confession was compelled, any alleged error was harmless beyond a reasonable doubt based on overwhelming evidence, including DNA evidence, Jane’s testimony, video evidence, and digital forensic evidence.

The convictions were affirmed.

The full opinion is available at https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111106405.pdf.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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