UNITED STATES COURT OF APPEALS September 5, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2047

JOSE PENA,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:20-CR-01903-MV-1) _________________________________

Kurt J. Mayer, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant Jose Pena.

Jaymie L. Roybal, Assistant United States Attorney, Albuquerque, New Mexico (Alexander M. M. Uballez, United States Attorney, and C. Paige Messec, Assistant United States Attorney, Albuquerque, New Mexico, with her on the brief), for Plaintiff- Appellee United States of America. _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

The Fifth Amendment prohibits the government from using an involuntary

confession as evidence in a criminal trial. But law enforcement does not produce an

involuntary confession by persuading a suspect to confess or by influencing a Appellate Case: 23-2047 Document: 010111106405 Date Filed: 09/05/2024 Page: 2

defendant in making inculpatory statements. Rather, a suspect’s confession offends

the Fifth Amendment only if law enforcement overbears the suspect’s free will and

critically impairs the suspect’s capacity for self-determination.

Here, Defendant confessed that he induced his minor daughter into having—

and recording—sexual intercourse with him. Before trial, Defendant moved to

suppress his confession as involuntary, but the district court denied his motion, and

the jury convicted him. Defendant challenges the district court’s denial of his

motion, but we hold the district court erred neither in its factfinding nor its legal

conclusions. And even if the district court had erred, the error was harmless

considering the overwhelming evidence against Defendant. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

I.

Using a Facebook account under the alias “Jaime Peres,” Defendant Jose Pena

initiated an online, romantic relationship with his then-fifteen-year-old daughter, Jane

Doe. Though they never met or talked on the phone, “Jaime” and Jane

communicated frequently over Facebook Messenger, regularly professing their love

for each other. After almost a year of amorous conversation, “Jaime” switched his

tack, telling Jane that he was a cartel member, and that the cartel would kidnap and

behead Defendant—her father—unless Jane filmed herself having sex with

Defendant.

To add credibility to the threat, Defendant executed two more elements of his

scheme. First, “Jaime” told Jane that he knew Defendant was at Walmart—a fact

2 Appellate Case: 23-2047 Document: 010111106405 Date Filed: 09/05/2024 Page: 3

Jane was able to confirm. Second, Defendant told Jane that men in black SUVs with

machine guns ambushed Defendant at a gas station and beat him up.

Jane succumbed to “Jaime’s” demand and recorded herself having sexual

intercourse with Defendant. She sent the videos to “Jaime” through Facebook

Messenger. But “Jaime” complained that Jane had not kept her word because it

didn’t “look like [Jane was] enjoying” the interc

Click Here to Read the rest of this document