          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

                                  

 
              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

                                     - 2 -
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.

                                                                          - 3 -
                                                                          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.

                                                                         - 4 -
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.

                                  - 5 -
           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.




                                  - 6 -
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.




                               - 7 -
           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

                                  - 8 -
"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

                                - 9 -
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

                                   - 10 -
          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

                                  - 11 -
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

                                   - 12 -
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




                               - 13 -
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

                                   - 14 -
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).




                              - 15 -
            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

                                  - 16 -
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

                                  - 17 -
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).




                              - 18 -
             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

                                - 19 -
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)).

                                - 20 -
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

                                                               - 21 -
                             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.

                                                                - 22 -
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.




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