United States v. Redlightning

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30122

Plaintiff-Appellee, D.C. No.

v.  2:07-cr-00358-

HENRY KEELER REDLIGHTNING, JLR-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted

May 4, 2010—Seattle, Washington

Filed October 25, 2010

Before: Kim McLane Wardlaw and Ronald M. Gould,

Circuit Judges, and Richard Mills, Senior District Judge.*

Opinion by Judge Gould

*The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation.

17507

17512 UNITED STATES v. REDLIGHTNING

COUNSEL

Michael Filipovic (argued), First Assistant Public Defender,

Corey Endo, and Christopher J. Kerkering, Seattle, Washing-

ton, for the defendant-appellant.

Jenny A. Durkan, U.S. Attorney, Michael S. Morgan

(argued), Assistant U.S. Attorney, Western District of Wash-

ington, Seattle, Washington, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Henry Redlightning appeals his jury conviction for killing

Rita Disanjh on Native American land with premeditation and

in the perpetration or attempted perpetration of sexual abuse.

See 18 U.S.C. §§ 1111, 1151, 1153(a). Redlightning argues

first that the district court erred by refusing to suppress his

confessions to the murder of Disanjh. Redlightning’s theories

of suppression are that the confessions resulted from his

unlawful detention by FBI agents and also that the agents did

not promptly present him for an arraignment. Redlightning

argues second that the district court erred by excluding expert

testimony about false confessions and expert testimony about

the effect of Redlightning’s impaired vision, diabetes, and

Post-Traumatic Stress Disorder (“PTSD”) on his mental con-

dition and susceptibility to making a false confession.

UNITED STATES v. REDLIGHTNING 17513

Redlightning argues third that the district court erred on sev-

eral other evidentiary rulings, such as by excluding evidence

that a police officer previously supplied a suspect with non-

public information about the murder, by excluding hearsay

evidence that another suspect may have committed the mur-

der, and by excluding evidence of manual strangulations in

neighboring King County. Redlightning argues fourth that the

district court erred by admitting into evidence his confessions

to sexually assaulting another victim. Redlightning argues

fifth that the district court erred by rejecting his proposed jury

instruction about the reliability, credibility, and truthfulness of

his confession. Redlightning argues sixth that the prosecutor

engaged in misconduct, offending due process, when he said

during closing arguments that people do not confess to crimes

they did not commit. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

I

On August 9, 1987, the body of Rita Disanjh was found in

the Nooksack River on the Lummi Indian Reservation in

Whatcom County, Washington. There was no forensic evi-

dence that Disanjh was sexually assaulted, but that could be

inferred because her body was discovered unclothed, the body

was found in water and that could have washed away evi-

dence of a sexual assault, and the pathologist could not rule

out the possibility of a sexual assault. A pair of women’s

underwear was found in the water near the body. The patholo-

gist concluded that Disanjh was killed by manual strangula-

tion, and thought this distinctive because it was the only

manual strangulation that the pathologist could remember in

thirty-six years as Whatcom County’s pathologist. Disanjh did

not have drugs in her system, but had a blood-alcohol level of

0.22. The police found tire tracks near the body.

The police learned that on the night of her murder Disanjh

had been with her boyfriend, John Root, but left him to visit

a Bellingham bar. From there, Cyril LaClair gave Disanjh a

17514 UNITED STATES v. REDLIGHTNING

ride to a beach party on the Lummi reservation. Initial sus-

pects in Disanjh’s murder included Root and Gregory Pepin,

Disanjh’s ex-boyfriend who had previously assaulted Disanjh

and who had violated a protection order. The police later

ruled out Pepin as a suspect. The police spoke to about forty

people in the weeks after the murder but developed no leads.

On January 30, 2006, more than eighteen years after the

murder, Athena Swope contacted the Whatcom County Sher-

iff’s Office. Swope is the daughter of Redlightning’s partner,

Patricia Dubbs, and Swope had been living with and caring

for Redlightning. There was evidence that Swope had an axe

to grind. Swope and Redlightning had been having disputes

over money. Athena Swope told the police that Redlightning

had verbally abused her and her family and asked if there was

a statute of limitations on abuse. She also told of abuse

Redlightning inflicted on his grandchildren. The police

responded that they could not help her with these issues and

referred her to Child Protective Services. Athena Swope then

told the police that Redlightning and a former boyfriend

Kevin Swope1 were involved in the murder of a woman.

Agent James Powers of the FBI thereafter interviewed

Athena Swope, who in 1987 had been fifteen years old. She

told Powers that the night before the Disanjh murder

Redlightning and Kevin Swope left in Redlighting’s car—a

red Plymouth Barracuda—for a night of drinking. She said

that the next morning the car and Redlightning’s clothes were

covered in brown, clay mud. She also said that Redlightning

and Dubbs on that morning had an argument, and thirty min-

utes later began washing the car. Athena Swope said that

Redlightning then told her he was going to sell the car, and

soon thereafter he did sell it. Athena Swope also told Powers

1

At the time of making this police report, Athena Swope was married

to John Swope but at one time she had dated his brother, Kevin Swope,

hence Athena Swope has the same last name as her former boyfriend

Kevin Swope.

UNITED STATES v. REDLIGHTNING 17515

that her mother told her, before Dubbs died in 2003, that

Redlightning had confessed to Dubbs that he was involved in

the Disanjh murder.

Agent Powers thereafter began to investigate Redlightning,

a Vietnam War veteran who was thirty-seven-years-old when

Disanjh was murdered. Redlightning has several medical

problems and limitations. He suffers from PTSD and the mili-

tary determined that because of his condition he is 70 percent

disabled. Conversations about Vietnam affect Redlightning’s

ability to process information, causing him to become disor-

ganized and confused. Redlightning suffers from diabetes, has

a low-average intellect, is blind in his left eye, and has limited

peripheral vision in his right eye.

During his investigation, Agent Powers also learned that

Redlightning had confessed to and was convicted of sexually

assaulting Linda Rosario in 1990 after Rosario asked

Redlightning about his experience in Vietnam. Agent Powers

obtained a DNA sample from Redlightning and Redlight-

ning’s Veterans Administration file with medical records that

showed Redlightning suffered from diabetes and PTSD.

Agent Powers thereafter contacted Agent Raymond Lauer, an

FBI polygraph and interrogation expert, to help him in ques-

tioning Redlightning.

On October 2, 2007, Agents Powers and Lauer cleared

Agent Powers’s office preparing for a planned interview with

Redlightning. They later went to Redlightning’s home and

asked him if he would come to the FBI office in Bellingham

to talk about some cases. Redlightning agreed, and went with

them to the FBI office. During the questioning, Redlightning

at first denied involvement in the Disanjh murder and denied

knowing Disanjh upon being shown her photograph.

Redlightning agreed to answer questions in a polygraph

examination, and, upon only the fifth question in the poly-

graph examination, Redlightning confessed to sexually

assaulting and killing Disanjh. Agent Lauer removed the

17516 UNITED STATES v. REDLIGHTNING

polygraph equipment after Redlightning’s admission of guilt

and Lauer continued questioning Redlightning about the mur-

der. During this questioning, Redlightning denied committing

five other local unsolved murders but also said he participated

in or observed the rape or murder of thirty to forty civilians

in Vietnam. Although Redlightning had just given a simple

“yes” answer initially in the polygraph examination when

asked if he sexually assaulted and killed Disanjh, following

the further examination by the agent, Redlightning signed a

confession giving details about the murder.

After the questioning ended, the FBI agents drove to

Redlightning’s home to retrieve his medicine, and then they

booked Redlightning into the Whatcom County jail.

The next day Agent Powers drove Redlightning from Bel-

lingham to Seattle for Redlightning’s arraignment. While

transporting Redlightning to Seattle, Agent Powers spoke

with an Assistant U.S. Attorney who asked if Agent Powers

would reinterview Redlightning. Detouring off the interstate

highway that connects Bellingham to Seattle, and which

passes through Everett, Agent Powers drove to the FBI office

in Everett, Washington, and there obtained an additional con-

fession from Redlightning. Agent Powers thereafter promptly

resumed the trip and delivered Redlightning to the district

court before the scheduled 2:30 p.m. arraignment.

Subsequently, Agent Powers discovered that the automo-

bile Redlightning used in 1987 had standard wheel width and

tracks that were “very close” to the tire tracks found near Dis-

anjh’s body. That evidence, however, was not entirely conclu-

sive because he also learned that 809 different types of cars

and trucks would have had wheel tracks within an inch and

496 would have been within a half of an inch of those mea-

surements.

Before trial, Redlightning sought, among other things, to

have his confessions to murdering Disanjh suppressed and to

UNITED STATES v. REDLIGHTNING 17517

allow an expert witness to testify about the phenomenon of

false confessions. However, Redlightning never recanted his

confession by communication to the FBI. The district court

denied Redlightning’s motions.

At trial, Redlightning sought to establish that the confes-

sions were not credible, trustworthy, or reliable. An ophthal-

mologist testified regarding Redlightning’s vision problems,

a doctor testified about Redlightning’s diabetes, and a neuro-

psychologist testified about Redlightning’s PTSD. Redlight-

ning tried to establish that death by manual strangulation was

not as uncommon as the Whatcom County pathologist had

suggested. Redlightning sought to show that Disanjh’s ex-

boyfriend was a viable suspect with a history of violence

against Disanjh. Redlightning attempted to undermine

Swope’s credibility by pointing out errors in her statement

and a motive for lying.

The government marshaled its evidence and arguments

tending to show that Redlightning did in fact murder Disanjh,

while suggesting that it was “exceedingly unlikely” that

Redlightning committed the multiple and massive number of

Vietnam War crimes for which he had asserted responsibility

during the first confession interview with Agent Lauer. As for

evidence, beyond his own confessions, incriminating

Redlightning in Disanjh’s murder, the area where Disanjh’s

body was discovered was muddy and contained tire tracks,

and there was testimony that on the night of the murder

Redlightning and Kevin Swope went out with Redlightning’s

car. Also, more than one witness testified that the next morn-

ing Redlightning and his partner, Patricia Dubbs, were seen

cleaning mud off his car. More than one witness testified that

Redlightning changed his car’s tires. Nancy Budde, an

acquaintance of Redlightning, testified that Redlightning nod-

ded his head “yes” when she asked him if he killed a woman

on the Lummi Reservation. The sexual assault of Linda Rosa-

rio was also admitted into evidence; she, like Disanjh, had

been strangled. The jury found that Disanjh was murdered in

17518 UNITED STATES v. REDLIGHTNING

connection with Redlightning’s perpetration or attempt to per-

petrate a sexual assault. The government emphasized the

detail given by Redlightning in his signed confession. For

example, he accurately said that the body was dumped in the

Nooksack River and that the victim was strangled. He also

said that Disanjh had angered him by taking his photograph

at the Holly Tavern. Although Redlightning’s counsel dis-

puted that Disanjh had taken photographs of Redlightning,

Disanjh was an amateur photographer and her former boy-

friend and son testified that she had her camera the night of

her murder.

The jury found Redlightning guilty of killing Disanjh with

premeditation and in the perpetration of, or the attempt to per-

petrate, aggravated sexual abuse or sexual abuse. The district

court sentenced Redlightning to life in prison and entered

judgment on March 23, 2009. Redlightning timely appeals.

II

We first address Redlightning’s argument that he was

arrested without probable cause before he confessed and

therefore the resulting confessions, one given on October 2,

2007, and the second on October 3, 2007, should be sup-

pressed as the fruit of the poisonous tree. See, e.g., Wong Sun

v. United States, 371 U.S. 471, 487-88 (1963). Because we

conclude that Redlightning did not confess as the result of an

unlawful arrest, the district court did not err in refusing to

suppress the confessions.

On this part of the appeal, the questions at the core are

whether Redlightning was under arrest before he confessed

that he had murdered Disanjh and, if so, whether there was

probable cause to arrest. With regard to the October 3 confes-

sion, there was clearly cause to detain and arrest Redlightning

once he had made his prior October 2 confession to killing

Disanjh, but if the October 2 confession was given in viola-

tion of the Constitution, then both it and the later confession

UNITED STATES v. REDLIGHTNING 17519

on October 3 could be excluded as a fruit of the initial illegal-

ity.

A

We must decide whether Redlightning was under arrest

when he visited the Bellingham FBI office on October 2 and

made his first confession to the FBI.

On October 2, 2007, Agents Powers and Lauer prepared

Powers’s office for an anticipated interview with Redlight-

ning. According to Agent Powers, because the FBI’s Belling-

ham office did not have an interview room, Agent Powers

“sanitized” his office by, for example, taking the pictures off

the walls and emptying his desk. Then Agents Powers and

Lauer went to Redlightning’s home. The agents knocked on

Redlightning’s door and identified themselves. The agents

were armed, but their firearms were concealed under their

jackets, and at least Agent Powers did not have handcuffs

with him. They asked Redlightning if they could “talk to him

for a couple minutes.” With Redlightning’s permission, the

agents entered his home. The agents told Redlightning that

they were “investigating some cases” and asked if Redlight-

ning “would be willing to come down to the office.” Redlight-

ning agreed.

Before leaving the house, the agents asked Redlightning if

he needed a jacket, which he put on. The agents also asked

Redlightning if he needed anything to eat or needed to bring

any medication with him. Redlightning replied that he did not

need any medication until later that evening, implying that he

intended to return home that night. Redlightning was not

wearing his eyeglasses, but Agent Powers testified that

Redlightning did not have trouble getting around the house.

Upon heading to the car, Agent Powers performed a quick pat

down with the backs of his hands, checking Redlightning’s

ankle and waistband areas. The agents did not tell Redlight-

ning that he had the right to refuse to accompany them to the

17520 UNITED STATES v. REDLIGHTNING

FBI office, but neither did they tell him that he had to go. The

agents used no tools of coercion to force Redlightning to go

with them; they asked him if he would come in to talk

because they were investigating cases, and he agreed to do so.

A request by law enforcement and responsive cooperation by

an individual are routine and, alone, do not amount to an

arrest.

Agent Powers testified that upon arrival at the FBI office,

Redlightning did not have any difficulty getting from the car

to the elevator. Agent Powers also testified that at the elevator

Redlightning put his hand on the wall. When asked if he was

“feeling okay,” Redlightning replied, “You know, I’m feeling

fine, I just have a little trouble seeing.” Agent Powers testified

that Redlightning moved on his own.

Inside Agent Powers’s office, Redlightning sat across from

the desk and Agent Lauer sat where Agent Powers would nor-

mally sit at his desk. Agent Lauer told Redlightning that he

“wanted to talk to him about some old investigations.” Agent

Lauer offered Redlightning water, which Redlightning

declined. Agent Lauer read Redlightning his Miranda rights.

Redlightning waived his rights by signing a waiver form.

Agent Powers left the room.

Agent Lauer described Redlightning as “pleasant,” “calm,”

and “very coherent.” Agent Lauer told Redlightning that he

was investigating a homicide and asked Redlightning about

war crimes Redlightning reportedly witnessed in Vietnam.

Redlightning informed Agent Lauer that he suffers from

PTSD. Redlightning talked about his 1990 conviction for

assaulting and raping Linda Rosario. Redlightning said that he

took a polygraph examination during the Rosario investiga-

tion. Agent Lauer asked whether Redlightning had choked

and sexually assaulted anyone else. Agent Lauer then again

asked Redlightning about war crimes. Lauer told Redlightning

that he was investigating the death of Rita Disanjh and asked

Redlightning whether he was involved or knew anything

UNITED STATES v. REDLIGHTNING 17521

about the Disanjh murder, to which Redlightning answered in

the negative. Agent Lauer showed Redlightning a photograph

of Disanjh. Redlightning said that he did not recognize her.

Agent Lauer then asked Redlightning if he would agree to

take a polygraph examination, and Redlightning agreed. The

fifth question asked in that examination was, “Did you sexu-

ally assault and kill Rita?” Redlightning responded, “Yes.”

Agent Lauer turned off the polygraph machine, removed the

components, and continued the questioning. Redlightning

then dictated a statement to Agent Lauer detailing his involve-

ment in Disanjh’s sexual assault and murder, and Redlight-

ning signed the statement. This confession stated:

I, Henry Keeler, also sometimes known as Henry

Keeler Red Lightening [sic], freely and voluntarily

make the following statement to Ray Lauer and Jim

Powers, two people I know to be Special Agents

with the Federal Bureau of Investigation. I dropped

out of high school in the 10th grade. I worked on my

GED while in prison but I couldn’t pass the math

portion. I am blind in my left eye and almost blind

in my right eye. Because of that Ray Lauer read me

my rights. I understand what they are and I’m talking

voluntarily to them. I have post traumatic stress syn-

drome but I’m otherwise mentally fit. I don’t use

illegal drugs and I’m not under the influence of alco-

hol.

In August either on the 8th or 9th in 1987 I was

drinking at an Indian bar called the Holly on Holly

street in Bellingham, WA. Rita Disanjh came into

the bar and started taking pictures. I didn’t like it, I

don’t like having my picture taken, but regardless, I

didn’t say anything to her.

Later everyone went to a beach party at the

Lummi Reservation. As I was getting ready to leave,

17522 UNITED STATES v. REDLIGHTNING

Rita Disanjh asked for a ride back to Bellingham

with me. I think she lived in the Fairhaven area. As

we were leaving the party she started asking me

about Vietnam. I don’t like talking about Vietnam

when I’m drinking. I kept asking her to stop but she

kept asking questions. I finally pulled the car over.

At the time I was driving a 1967 Barracuda. I pulled

into the parking lot of a business called Solomon’s

Fish house. There I raped and strangled Rita Disanjh.

I then put her body into the Nooksack River and

drove home. Kevin Swope was passed out in the

back of my car. He didn’t participate in Rita’s mur-

der. I never told him what I did. Swope is dead now.

Ray Lauer read this statement to me. I agree with

it and in fact asked Special Agent Lauer to add the

part of Swope being dead. I am voluntarily signing

it because it is true and correct.

B

[1] “It is well established that, under the ‘fruits of the poi-

sonous tree’ doctrine, evidence obtained subsequent to a vio-

lation of the Fourth Amendment is tainted by the illegality

and is inadmissible, despite a person’s voluntary consent,

unless the evidence obtained was purged of the primary taint.”

United States v. Washington, 490 F.3d 765, 774 (9th Cir.

2007) (internal quotation marks omitted). Redlightning con-

tends that even if his initial encounter with the FBI was vol-

untary, the agents’ subsequent conduct transformed the

encounter into an in-custody detention that was not supported

by probable cause before Redlightning confessed. Accord-

ingly, Redlightning argues, any subsequent voluntary state-

ments must be suppressed.

[2] “[A] person has been ‘seized’ within the meaning of

the Fourth Amendment only if, in view of all the circum-

stances surrounding the incident, a reasonable person would

UNITED STATES v. REDLIGHTNING 17523

have believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart,

J.); United States v. Al Nasser, 555 F.3d 722, 728 (9th Cir.

2009)

The ultimate inquiry underlying the question of cus-

tody is simply whether there was a formal arrest or

restraint on freedom of movement of the degree

associated with a formal arrest. To answer this ques-

tion, the reviewing court looks to the totality of the

circumstances that might affect how a reasonable

person in that position would perceive his or her

freedom to leave.

Stanley v. Schriro, 598 F.3d 612, 618 (9th Cir. 2010) (internal

quotation marks and citations omitted). The “reasonable per-

son” test is an objective test, California v. Hodari D., 499

U.S. 621, 628 (1991), applied from the viewpoint of an inno-

cent person, United States v. Guzman-Padilla, 573 F.3d 865,

884 (9th Cir. 2009), and considering the readily apparent per-

sonal characteristics of the accused, see, e.g., Mendenhall,

446 U.S. at 558; United States v. Moreno, 742 F.2d 532, 536

(9th Cir. 1984) (holding that a factor in determining whether

the defendant was seized was that the defendant was a Colom-

bian citizen with limited English skills).

[3] The totality of the circumstances determines whether a

person was arrested. United States v. Hayden, 260 F.3d 1062,

1066 (9th Cir. 2001). Factors relevant to whether an accused

is in custody include “(1) the language used to summon the

individual; (2) the extent to which the defendant is confronted

with evidence of guilt; (3) the physical surroundings of the

interrogation; (4) the duration of the detention; and (5) the

degree of pressure applied to detain the individual.” Id.; see

also Mendenhall, 446 U.S. at 554 (holding that factors include

threatening presence of several officers, display of a weapon,

physical touching, and use of language or tone of voice indi-

cating that compliance might be compelled). When an

17524 UNITED STATES v. REDLIGHTNING

encounter is consensual, it is “outside the ambit of the Fourth

Amendment’s guarantee against unreasonable searches and

seizures.” United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.

1994). The absence of explicitly informing the person that he

or she is free to leave is not a dispositive factor. United States

v. Orman, 486 F.3d 1170, 1176 (9th Cir. 2007).

We conclude that the totality of circumstances and the bal-

ance of factors weigh in favor of the government and that

Redlightning was not in custody during the October 2 ques-

tioning until he confessed to the Disanjh sexual assault and

murder. The encounter at Redlightning’s home did not

amount to a seizure. Redlightning voluntarily agreed to join

the FBI agents at the FBI office. He was not handcuffed. No

guns were brandished by the agents. One of them did not have

handcuffs, which tends to indicate the absence of an intent to

arrest. The minimal pat-down search to which Redlightning

was subjected, before he got in the FBI car, was routine

before entering an FBI vehicle. Redlightning’s response to

agents about medication indicated that in the circumstances

then presented he believed he would be returning home that

evening.

However, while the encounter at Redlightning’s house and

his agreement to depart with the agents to aid their investiga-

tive questioning was consensual, we must consider whether

these circumstances gradually escalated into a setting where

a reasonable person standing in his shoes would not have felt

free to leave, yet before agents gained probable cause to

arrest. Stated another way, we need to consider whether the

cumulative circumstances escalated to the point where

Redlightning was effectively in custody. For example, the

United States Supreme Court concluded that an arrest had

occurred when events escalated into an investigatory proce-

dure in a police interrogation room. Florida v. Royer, 460

U.S. 491, 503 (1983); see also Washington, 490 F.3d at

772-73 (events after a Terry stop escalated to a point where

a reasonable person would not have felt free to leave, assess-

UNITED STATES v. REDLIGHTNING 17525

ing such features as lateness of night on a dark city street and

more than one police car arriving at the scene and blocking

passage); Moreno, 742 F.2d at 535 (describing how the defen-

dant found himself “in a highly detentive environment—in a

small room that had been specifically designated for police

business”).

[4] Yet, before Redlightning confessed to the murder early

in the polygraph examination, there was no evidence that

would show a reasonable person standing in his shoes would

not have felt that discussion was voluntary. Having voluntar-

ily accompanied the FBI, Redlightning could have indicated

a desire to leave before he confessed. There is no showing

that the door to the room in which Redlightning was ques-

tioned was locked and that door in any event could be

unlocked from the inside. The room was not being used to

detain Redlightning but to interview him. The agents testified

at the suppression hearing that Redlightning could have termi-

nated the encounter at any time. Only one agent remained in

the room during the questioning. The questioning was brief up

to the point of Redlightning’s confession. Until then no evi-

dence suggests that a reasonable person in the circumstances

would not have felt that he could terminate discussion and

depart. The evidence, instead, shows that a reasonable inno-

cent person would have felt free to leave.

Denying the motion to suppress, the district court first cor-

rectly stated that “the Supreme Court has held that a defen-

dant is under arrest using a standard that asks whether a

reasonable person would have believed that he was not free

to leave.” The district court next correctly applied this famil-

iar standard:

The record, as it’s been developed in this hearing,

I believe, establishes the following. The defendant

was requested to accompany FBI agents Powers and

Lauer to the FBI office in Bellingham on the morn-

ing of October 2nd. There is no disagreement in the

17526 UNITED STATES v. REDLIGHTNING

record that he voluntarily agreed to accompany the

agents when asked to do so. I find that he was not

under arrest at the time that he accompanied the FBI

agents to the office in Bellingham that morning, and

that he was free to leave or to stop the interrogation

until affirmatively responding to the question of did

you sexual assault and kill Rita DiSanjh. By my

notes, that occurs at about 12:22 pm.

We agree with the district court that nothing that occurred

before the point when Redlightning confessed to murdering

Disanjh, very early in his polygraph examination, transformed

the interview session into an “in custody” setting.

Redlightning focuses on the moment when Agent Lauer

asked if Redlightning would submit to a polygraph examina-

tion and when Agent Lauer hooked Redlightning to the poly-

graph equipment as likely points at which the encounter was

no longer consensual. We disagree that these were transform-

ing events, either individually or cumulatively. Agent Lauer

asked Redlightning if he would be willing to take the poly-

graph examination. Agent Lauer did not require Redlightning

to take it. His choice to submit to the polygraph examination

was voluntary. There is no evidence that Redlightning submit-

ted to the examination because he felt restrained. We rest our

decision on the totality of circumstances, on all that was said

and done by the agents and Redlightning, and the context in

which this occurred, from the time the agents knocked on

Redlightning’s door until the time he confessed to murdering

Disanjh, at the Bellingham FBI headquarters in Agent Pow-

ers’s office during his polygraph examination.2

2

Our decision, rejecting Redlightning’s argument stressing the use of

polygraph, is reinforced by the fact that we have held that the “threat of

a polygraph would be more relevant to whether [the defendant’s] confes-

sion was voluntary, rather than whether he was in custody.” United States

v. Norris, 428 F.3d 907, 913 (9th Cir. 2005). Here there is no suggestion

that Redlightning’s October 2 confession was involuntary, and we note it

was given very early in his interview session and after he had received a

Miranda warning.

UNITED STATES v. REDLIGHTNING 17527

Although the FBI did not explicitly tell Redlightning that

he was free to leave at any time,3 the totality of the circum-

stances shows that objectively Redlightning was cooperating

as a volunteer. Before his confession he was able to terminate

the interview and depart. Moreover, the FBI agents did not

present Redlightning with any evidence showing that he com-

mitted the crime. Agent Lauer asked Redlightning about his

prior rape conviction and his conduct in the Vietnam War, but

those questions did not necessarily tie Redlightning to the

Disanjh murder. When shown Disanjh’s picture, Redlightning

said that he did not know her. There is no suggestion that the

brief series of polygraph questions asked before Redlight-

ning’s confession were themselves coercive or contained any

implied promises. Nothing prevented Redlightning from end-

ing the questioning, calling a taxi to take him home, walking

the short distance home, or asking the FBI agents to return

him to his home. The totality of the circumstances, including

Redlightning’s voluntary cooperation throughout and his

unrestricted path to the door, show that a reasonable person

would have felt free to leave.

The reading of Miranda rights prior to questioning in the

FBI interview room could equally support the position of

either party, and in some circumstances might indicate a per-

son was not free to leave, see United States v. Crawford, 372

F.3d 1048, 1060 (9th Cir. 2004) (en banc) (explaining that

when the police officer read defendant his Miranda rights the

defendant stopped the officer and said, “Oh, I’m under

arrest?”). The controlling legal standard requires, however,

that we consider the total circumstances and how an objective

3

Our conclusion that there was no unreasonable seizure “is not affected

by the fact that the respondent was not expressly told by the agents that

[he] was free to decline to cooperate with their inquiry, for the voluntari-

ness of [his] response does not depend upon [his] having been so

informed.” Mendenhall, 446 U.S. at 555. This suggested analysis has been

followed in our Circuit. See, e.g., Orman, 486 F.3d 1170 at 1176 (“[T]he

consensual nature of the encounter is not undermined by [the police offi-

cer’s] failure to expressly tell [the suspect] that he was free to leave.”).

17528 UNITED STATES v. REDLIGHTNING

person would assess if he was free to leave. We conclude, as

stated by a leading commentator, that “the issuance of

Miranda warnings as a cautionary measure does not itself

transform the situation into a Fourth Amendment seizure.” 3

Wayne R. LaFave, Search and Seizure § 5.1(a) (4th ed. 2004).

[5] The agents did not use heavy-handed tactics to confuse,

disorientate, or intimidate Redlightning, and the overall pres-

sure applied did not rise to a level where a reasonable person

would have felt prohibited from leaving. By contrast there

may be coercive settings and tactics that inescapably would

lead an objective person to think that the person could not

leave. See, e.g., United States v. Beraun-Panez, 812 F.2d 578,

580 (9th Cir. 1987) (“Accusing Beraun-Panez repeatedly of

lying, confronting him with false or misleading witness state-

ments, employing good guy/bad guy tactics, taking advantage

of Beraun-Panez’s insecurities about his alien status, keeping

him separated from his co-worker in a remote rural location,

insisting on the ‘truth’ until he told them what they sought,

the officers established a setting from which a reasonable per-

son would believe that he or she was not free to leave.”).

[6] Given the totality of circumstances, we conclude that in

the time leading to Redlightning’s confession, a reasonable

person in Redlightning’s shoes would have thought that he or

she could get up and go if declining to take part in further

investigative questioning. We hold that Redlightning’s initial

confession on October 2 was not the result of an unlawful sei-

zure. It follows inescapably that his second confession on

October 3 was not a fruit of a prior unconstitutional act.

Therefore, the district court correctly refused to suppress his

October 2 confession, rejecting the argument that he was in

custody without probable cause, and concluded that the Octo-

ber 3 confession was not a fruit of a prior unconstitutional act.

UNITED STATES v. REDLIGHTNING 17529

III

Redlightning challenges the district court’s denial of his

motion to suppress his October 3 confession, contending that

the FBI failed to “take the defendant without unnecessary

delay before a magistrate judge.” Fed. R. Crim. P. 5(a).4

[7] Before the enactment of Rule 5(a), “the obligation of

an officer to present an arrestee before a magistrate judge

without unreasonable delay was a common law right,” and

federal courts would “enforce this prompt-presentment

requirement by suppressing a defendant’s confession if it was

made after an unreasonable delay in bringing him before a

judge.” United States v. Garcia-Hernandez, 569 F.3d 1100,

1104 (9th Cir. 2009) (internal quotation marks omitted). The

purpose of the rule was to “check[ ] resort to those reprehensi-

ble practices known as the ‘third degree.’ ” Id. (citing

McNabb v. United States, 318 U.S. 332, 344 (1943)); see also

Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin

S. Kerr, Criminal Procedure § 6.3(b) (5th ed. 2009). Apply-

ing the newly enacted Rule 5(a), the Supreme Court held that

a confession made about seven hours after arrest was inadmis-

sible due to unnecessary delay. Mallory v. United States, 354

U.S. 449, 455 (1957). “Thus, the rule known simply as

McNabb-Mallory generally renders inadmissible confessions

made during periods of detention that violate the prompt pre-

sentment requirement of Rule 5(a).” Corley v. United States,

129 S. Ct. 1558, 1563 (2009) (punctuation omitted). The stan-

dard under the McNabb-Mallory rule requires, subject to the

statutory safe harbor described below, that there be no unrea-

sonable delay in presenting a person accused of crime before

a neutral magistrate after his or her arrest. See generally

LaFave, et al., Criminal Procedure, supra § 6.3.

4

Redlightning does not challenge the admissibility of his October 2 con-

fession under the prompt presentment requirement.

17530 UNITED STATES v. REDLIGHTNING

[8] Congress thereafter enacted 18 U.S.C. § 3501(c),

which “provides that a court may not suppress a confession

made during a six-hour safe-harbor period solely due to delay

in presentment if the confession was made voluntarily and if

the weight to be given the confession is left to the jury.”

Garcia-Hernandez, 569 F.3d at 1104.

The statute also provides for an extension of the six-

hour time limit in any case in which the delay in

bringing such person before such magistrate judge

. . . is found by the trial judge to be reasonable con-

sidering the means of transportation and the distance

to be traveled to the nearest available such magis-

trate judge . . . .

Id. at 1104-05 (internal quotation marks omitted). The

Supreme Court recently held that Ҥ 3501(c) did not supplant

the McNabb-Mallory rule, but rather modified the rule to

‘provide immunization to voluntary confessions given within

six hours of a suspect’s arrest.’ ” Id. at 1105 (quoting Corley,

129 S. Ct. at 1564). Accordingly, the Supreme Court set forth

a two-part test for assessing potential violations of the

prompt-presentment requirement:

[A] district court with a suppression claim must find

whether the defendant confessed within six hours of

arrest (unless a longer delay was “reasonable consid-

ering the means of transportation and the distance to

be traveled to the nearest available magistrate”). [1]

If the confession came within that period, it is admis-

sible, subject to the other Rules of Evidence, so long

as it was “made voluntarily and the weight to be

given it is left to the jury.” [2] If the confession

occurred before presentment and beyond six hours,

however, the court must decide whether delaying

that long was unreasonable or unnecessary under the

McNabb-Mallory cases, and if it was, the confession

is to be suppressed.

UNITED STATES v. REDLIGHTNING 17531

Id. (quoting Corley, 129 S. Ct. at 1571).

Redlightning’s argument that there was not a reasonably

prompt presentment relies on the factual assertion that the FBI

should have taken Redlightning to the nearest magistrate

judge in Seattle, Washington, on October 2 by 2:30 p.m.,

which was the daily calendared and scheduled arraignment

time for federal defendants in Seattle.5 However, that premise

is neither realistic nor reasonable, and we decline to impose

it upon the government. The initial interview with Redlight-

ning occurred in Bellingham, Washington, about 90 miles

from Seattle, and, given traffic and speed limits, at least a

ninety-minute drive away. At 12:22 p.m. on October 2,

Redlightning first implicated himself in the Disanjh murder.

The FBI was not required immediately to stop questioning

and start driving Redlightning to a Seattle arraignment. The

FBI, after hearing Redlightning’s initial confession, was enti-

tled reasonably to continue questioning him sufficiently to

assess what he had said. In fact, the FBI questioned Redlight-

ning about the Disanjh murder until 1:45 p.m. This duration

of less than one and a half hours after his first confession is

not unreasonable, and at that point he could not have been

taken to Seattle in time for a 2:30 p.m. arraignment. Thereaf-

ter, until 5:30 p.m., the FBI questioned Redlightning about

incidents unrelated to the Disanjh murder. That period of

questioning was also reasonable and within the statutory safe

harbor for interrogation time. At 5:30 p.m. the FBI took

Redlightning to his home to retrieve his medication and then

to the Whatcom County Jail for an overnight stay. It was rea-

sonable to get Redlightning his needed medication, and the

overnight jail stay could not reasonably be avoided. At 8:30

a.m. on October 3, the FBI agents began driving Redlightning

from the Whatcom County Jail to the Seattle courthouse for

5

A part-time magistrate judge was available in Bellingham on October

2, but the district court found that the magistrate judge was not equipped

to conduct Redlightning’s arraignment. Redlightning does not challenge

that conclusion on appeal.

17532 UNITED STATES v. REDLIGHTNING

his arraignment. During the drive, Agent Powers received a

call from Assistant U.S. Attorney Michael Lang, who asked

Agent Powers if he would reinterview Redlightning in order

to elicit Redlightning’s motivation for the killing and “finish

the interview” from the day before. In response, the FBI

agents detoured to the Everett FBI office to interrogate

Redlightning, which lasted about fifteen minutes and resulted

in another confession. The FBI agents resumed the trip, and

Redlightning arrived at the Seattle courthouse at 10:50 a.m.

Redlightning met with an attorney several hours before

appearing in front of the magistrate judge at 2:30 p.m.

[9] The district court concluded that Redlightning was

effectively arrested at 12:22 p.m. on October 2 because that

was the moment he first confessed to the Disanjh murder. If

the FBI agents had stopped questioning Redlightning then,

immediately upon his confession, they perhaps could have

reached Seattle in time for the 2:30 p.m. arraignment. How-

ever, because the agents were entitled to at least a six-hour

safe harbor to continue questioning Redlightning, the FBI was

under no obligation to stop the questioning immediately the

moment Redlightning confessed, nor would it have been rea-

sonable for them to do so. Because the interview ended at

5:30 p.m. on October 2, which was well within the six-hour

safe harbor, the FBI agents could not have transported

Redlightning to the Seattle courthouse in time for the October

2 arraignment calendar. We hold that the agents did not vio-

late the prompt-presentment requirement by not delivering

Redlightning to Seattle on October 2.

Redlightning further contends that because the FBI stopped

questioning him about the Disanjh murder at 1:45 p.m., the

FBI could have driven him to Seattle by 4:30 p.m., the time

that Redlightning argues is the latest a magistrate judge in

Seattle will process an arraignment after the 2:30 p.m. calen-

dar has begun. Although it is possible that the FBI may have

UNITED STATES v. REDLIGHTNING 17533

been able to make such arrangements, it was reasonable not

to attempt such a feat, and the FBI was not required to do so.6

[10] The next reasonably available time to arraign

Redlightning was therefore at 2:30 p.m. on October 3. Under

the first step in Corley, the six-hour safe harbor may be

extended if the delay was “reasonable considering the means

of transportation and the distance to be traveled to the nearest

available magistrate.” 129 S. Ct. at 1564. Because the govern-

ment reasonably intended to transport Redlightning via auto-

mobile to a magistrate judge presiding about 90 miles away,

and therefore could not have delivered Redlightning by the

2:30 p.m. arraignment scheduled on October 2, the delay until

2:30 p.m. on October 3 was reasonable considering the means

of transportation and the distance to be traveled to the nearest

available magistrate. Redlightning’s subsequent confession

made en route to the October 3 arraignment, although made

beyond the six hour safe harbor after Redlightning’s arrest on

October 2, was made before arraignment scheduled at a rea-

sonable time under the circumstances. For that reason,

Redlightning’s October 3 confession at the Everett FBI office

did not run afoul of the prompt-presentment requirement.

The initial appearance for arraignment on October 3,

although beyond six hours from the time Redlightning con-

fessed to killing Disanjh and considered then in custody, was

6

Redlightning concedes that the trip to Seattle could have taken as long

as two hours, and with the time needed to get Redlightning prepared for

the trip, it seems, at best, that the agents may have delivered Redlightning

by 4:00 p.m. Yet because a 4:00 p.m. arrival would have been ninety min-

utes after the 2:30 p.m. arraignment calendar regularly began, the agents

would have been forced to make special arrangements to process Redlight-

ning’s arraignment at the later time. Rule 5(a) does not require that law-

enforcement officers go to such lengths, and the possibility of successfully

processing Redlightning by 4:30 p.m. is speculative. Moreover, the gov-

ernment was within its authority to continue questioning Redlightning and

to use any voluntary, inculpatory statement made within the six-hour safe

harbor after the arrest, ending at 6:22 p.m., well after the arraignment cal-

endar had ended.

17534 UNITED STATES v. REDLIGHTNING

not improperly delayed. See id. at 1571 (“If the confession

occurred before presentment and beyond six hours, however,

the court must decide whether delaying that long was unrea-

sonable or unnecessary under the McNabb-Mallory cases

. . . .”). The six-hour safe harbor ended at 6:22 p.m. on Octo-

ber 2, at which point Redlightning had already been taken

home to retrieve his medication. See United States v. Manuel,

706 F.2d 908, 914 (9th Cir. 1983) (holding that delay for “hu-

manitarian motives can hardly be deemed unreasonable per

se”). The overnight delay occurred because no magistrate

judge was available. See United States v. Van Poyck, 77 F.3d

285, 289 (9th Cir. 1996) (“An overnight or weekend delay in

arraignment due to the unavailability of a magistrate does not

by itself render the delay unreasonable under § 3501(c).”).

Similarly, no magistrate judge was reasonably available until

2:30 p.m. on October 3, when the next arraignment calendar

commenced, so the delay until 2:30 p.m. on October 3 was

reasonable. Cf. United States v. Wilson, 838 F.2d 1081, 1085

(9th Cir. 1988) (“Even assuming that the delay overnight was

reasonable, there is no reasonable excuse why Wilson was not

promptly arraigned at the beginning of the arraignment calen-

dar the next day.” (internal footnote omitted, emphasis

added)). Provided that the government delivered Redlightning

by 2:30 p.m. on October 3, any voluntary confession made by

that time need not be suppressed. See Garcia-Hernandez, 569

F.3d at 1106 (“In particular, we have held that administrative

delays due to the unavailability of government personnel and

judges necessary to completing the arraignment process are

reasonable and necessary and therefore do not violate the

prompt-presentment requirement of Rule 5(a).”).7

7

Redlightning’s reliance on United States v. Wilson, is misplaced. Wil-

son is inapposite because the police in that case intentionally delayed

beyond the earliest reasonably available arraignment in order to interro-

gate the defendant further. 838 F.2d at 1083-85. Here, Redlightning was

presented before a magistrate judge at the earliest reasonable time for an

arraignment; there was no unreasonable or unnecessary delay.

UNITED STATES v. REDLIGHTNING 17535

[11] The district court described as “seemingly a danger-

ous move” the diversion to engage in further interrogation on

October 3. Possibly that would be so if the further interroga-

tion in Everett resulted in delivering Redlightning to the mag-

istrate judge after 2:30 p.m. and thus delayed arraignment.

The presentment then would not have been reasonably

prompt, and that would put admissibility of the October 3

confession, at the FBI Everett office, in question. But

Redlightning was delivered well before the scheduled October

3, 2:30 p.m. arraignment, and Redlightning had ample oppor-

tunity before his arraignment to speak with an attorney.

Because the government’s conduct did not result in an unrea-

sonable delay of the arraignment, there was no violation of

the prompt presentment requirement, and the district court did

not err in refusing to suppress the October 3 confession.

IV

Redlightning next argues that the district court erred in

excluding the expert testimony of Dr. Richard Leo and

excluding in part that of Dr. Alan Breen. Dr. Leo would have

testified on topics including the phenomenon of false confes-

sions generally; how and why psychological interrogation

methods can, and sometimes do, cause innocent suspects to

make false confessions; the interrogation methods taught by

Agent Lauer and how those techniques could lead to a false

confession; and which police techniques create a higher risk

of eliciting false confessions. He argues that Dr. Breen, a

neuropsychologist who evaluated Redlightning, should have

been allowed to testify to “assist the jury in understanding Mr.

Redlightning’s biological, physical and mental state during

the course of the interrogation sessions.” Redlightning con-

tends that exclusion of Dr. Leo’s testimony in whole and Dr.

Breen’s testimony in part was reversible error.

A

We review for abuse of discretion a district court’s decision

to exclude expert testimony. United States v. W.R. Grace, 504

17536 UNITED STATES v. REDLIGHTNING

F.3d 745, 759 (9th Cir. 2007). In the context of a denial of

motion for a new trial, we recently held that determining

whether a district court abused its discretion involves a two-

step inquiry. United States v. Hinkson, 585 F.3d 1247, 1261

(9th Cir. 2009) (en banc). First, we determine de novo

whether the district court identified the correct legal rule to

apply to the relief requested. Id. at 1261-62. If the district

court did not identify the correct legal rule, it is an abuse of

discretion. Id. at 1262. Second, we determine if the district

court’s application of the correct legal standard was illogical,

implausible, or without support in inferences that may be

drawn from the facts in the record. Id.

The Hinkson test for abuse of discretion has been applied

in varied contexts. See, e.g., Taylor v. Thacker (In re Taylor),

599 F.3d 880, 887 (9th Cir. 2010) (bankruptcy avoidance

action); Dominguez v. Schwarzenegger, 596 F.3d 1087, 1092

(9th Cir. 2010) (grant of preliminary injunction); United

States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010) (appli-

cation of Sentencing Guidelines). We think it useful also for

purposes of assessing the district court’s challenged decisions

here to limit or exclude expert testimony.

B

The district court excluded the proffered expert testimony

of Dr. Leo for the following reason:

At the Daubert hearing regarding Dr. Leo’s testi-

mony, the court learned from Dr. Leo that there was

nothing in the record at this point to support his the-

ory that the interrogation techniques used in this case

raised the risk of a false confession. . . . Here, the

court, as gatekeeper, cannot permit Dr. Leo to testify

regarding the possibility of a false confession due to

police interrogation techniques when he can point to

no evidence in the record that any of these tech-

niques are present in this case.

UNITED STATES v. REDLIGHTNING 17537

The district court concluded that “Dr. Leo’s opinion regarding

Defendant’s confession in this case is based solely on conver-

sations Dr. Leo had with defense counsel wherein defense

counsel informed Dr. Leo that Defendant had been promised

leniency if he confessed.”

Both parties dispute the scientific support confirming the

phenomenon of false confessions and whether the public gen-

erally understands that false confessions may occur even

when suspects are not physically assaulted by the police. But

the district court did not exclude Dr. Leo on those bases.

Rather the district court excluded the evidence after Dr. Leo

himself testified that there was nothing in the record to sup-

port his theory that the interrogation techniques used in this

case raised a risk of a false confession. On review for abuse

of discretion, we should not be quick to fault the district court

for adopting the position presented by the expert himself.

The district court was correct to require a showing of foun-

dation for the proffered expert testimony. In the course of the

Daubert hearing, Dr. Leo said that nothing in the record sup-

ported his theory of false confession. It was thereafter not

unreasonable for the district court to exclude Dr. Leo’s pro-

posed expert testimony, particularly where the record affirma-

tively showed no probability that any technique had been used

in interrogation that could support Dr. Leo’s theory of a false

confession, and where Redlightning’s confession followed

soon after the start of the polygraph examination questioning.

Agent Lauer had said in his report what he recalled, and noth-

ing therein suggested that he had used coercive tactics or

promises of leniency. If Redlightning wanted to dispute this,

he could have testified himself on that score. See United

States v. Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir.

1994) (“[W]hen a defendant takes the stand to protect his

Fourth Amendment rights at a pretrial suppression hearing,

his testimony cannot later be used against him to prove

guilt.”) (citing Simmons v. United States, 390 U.S. 377, 389

(1968)). Moreover, Redlightning had not told Dr. Leo, who

17538 UNITED STATES v. REDLIGHTNING

did not interview Redlightning but rather based his opinions

on what counsel told him, that any promises or coercive tac-

tics had occurred.

[12] The district court identified the correct legal standard

for determining the admissibility of expert testimony: Federal

Rule of Evidence 702 and the Supreme Court’s decision in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). The district court’s application of the expert-

testimony standard was logical, plausible, and supported by

inferences that may be drawn from the record. If expert testi-

mony will “assist the trier of fact to understand the evidence

or to determine a fact in issue,” such testimony is admissible

so long as “(1) the testimony is based upon sufficient facts or

data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.” Fed. R. Evid. 702.

The trial judge must perform a gatekeeping function to ensure

that the expert’s proffered testimony is both reliable and rele-

vant. See United States v. Freeman, 498 F.3d 893, 901 (9th

Cir. 2007). The gatekeeping function requires that the judge

assess whether “the reasoning or methodology underlying the

testimony is scientifically valid,” and “whether that reasoning

or methodology properly can be applied to the facts in issue.”

Daubert, 509 U.S. at 592-93.

[13] Here, Redlightning did not sufficiently show how Dr.

Leo’s testimony would have applied to the facts of his case.

Perhaps most importantly, Dr. Leo testified that nothing in the

record, including the FBI reports of the October 2 interview

and the testimony at the pretrial suppression hearing, showed

that any coercive tactic that may lead to a false confession

was used when the FBI questioned Redlightning. To be rele-

vant, an expert’s opinion must be based on “sufficient facts or

data,” and the witness must be able to “appl[y] the principles

and methods reliably to the facts of the case.” Fed. R. Evid.

702.

UNITED STATES v. REDLIGHTNING 17539

Dr. Leo testified that Redlightning’s attorneys told Dr. Leo

that Redlightning had said that he was given an implied prom-

ise of leniency for admitting his guilt, a technique that may

lead to a false confession. The district court concluded, how-

ever, that, although Federal Rule of Evidence 703 allows an

expert to form opinions on the basis of inadmissible evidence,

this particular third-party information learned from defense

counsel would not support a reasonable opinion on the verac-

ity of Defendant’s confession. We agree it could not be rea-

sonable to rest an expert opinion on advice of counsel rather

than facts provided by a party or a witness. See W.R. Grace,

504 F.3d at 761 (citing Federal Rule of Evidence 703 and

holding that although the facts and data relied on by the

expert need not be admissible, they must be “reasonably

relied upon by experts in the particular field”).

[14] Dr. Leo himself testified that his expertise is “driven

by empirical research” and that “interviewing subjects, if

you’re a social science [expert], is a form of empirical data

gathering.” But Dr. Leo never interviewed Redlightning and

never indicated his views were based on Redlightning’s state-

ments given to Dr. Leo in interview, which would have raised

the question whether such an interview was reasonably relied

on by experts in Dr. Leo’s field. Instead, Dr. Leo relied on

statements made to him by counsel, which was not reasonable

in these circumstances. Because Dr. Leo did not reasonably

point to any evidence in the record or other factors or data

reasonably relied on by experts in his field showing that the

FBI gave Redlightning an implied promise of leniency in

exchange for his confession or used any other coercive inter-

rogation method that may have lead to a false confession, Dr.

Leo could not provide any relevant testimony to assist the

jury. See United States v. Benally, 541 F.3d 990, 995 (10th

Cir. 2008) (affirming exclusion of proffered expert testimony

on false confessions in part because of limited relevancy

because the expert did not examine the defendant and would

not testify about the circumstances surrounding his confes-

sion). The district court did not err in excluding his testimony.

17540 UNITED STATES v. REDLIGHTNING

Redlightning contends that there was sufficient evidence in

the record, albeit limited, for the jury to conclude that police

techniques that may give rise to a false confession were pres-

ent in this case. In particular, Agent Lauer, who questioned

Redlightning on October 2, had authored training materials

teaching law-enforcement officers to use implied promises to

extract a confession from a suspect. Although Agent Lauer’s

FBI reports make no mention of an implied promise given to

Redlightning, Redlightning argues on this appeal that the jury

could have reasonably concluded that Agent Lauer used an

implied promise because his training materials encourage

their use. Redlightning also argues that a negative inference

should be taken because Agents Powers and Lauer did not

seek approval to record their interview of Redlightning.

We conclude that, in the circumstances here, it would have

been too speculative to infer from the training materials pre-

pared by Agent Lauer and the decision not to record Redlight-

ning’s interview that Agent Lauer in fact used an implied

promise that induced a false confession during the October 2

interview. Agent Lauer’s reports of the interview, including

the polygraph examination, made no mention of an implied

promise, and Redlightning did not testify at the Daubert hear-

ing contradicting Agent Lauer’s report. As noted above, Dr.

Leo did not rely on any interview of Redlightning or state-

ment of Redlightning to him. Also, when reviewing for abuse

of discretion, it is relevant that Dr. Leo himself did not assert

in his testimony at the Daubert hearing that these circum-

stances would have supported his opinion that there was a

false confession. That Redlightning admitted to assaulting and

killing Disanjh only five questions into the polygraph exami-

nation further supports the conclusion that a false confession

was not induced.

Under the circumstances of this case, Agent Lauer’s train-

ing materials coupled with the fact that the examination was

not recorded are not sufficient to support a finding by the jury

that Agent Lauer in fact made an implied promise of leniency

UNITED STATES v. REDLIGHTNING 17541

inducing a false confession. It would be too attenuated to con-

clude that a particular technique that Agent Lauer included in

his training materials must have been used in his interview of

Redlightning, and that it necessarily induced a false confes-

sion early in the examination.

Moreover, there are reasons beyond the speculative nature

of Redlightning’s theory as to why there was no abuse of dis-

cretion by the district court in denying this expert testimony:

First, the precise theory that Lauer’s manual plus failure to

record the interview of Redlightning supports an inference

that improper techniques were used was not advanced to the

district court. At the Daubert hearing, Dr. Leo did not explic-

itly suggest, nor did counsel for Redlightning argue, that the

Lauer training manual together with a lack of recording the

Redlightning interview was sufficient to infer a foundational

basis that promises of leniency were given.8

Second, in making its exclusionary ruling, the district court

was careful to make this provisional, stating, “The court

GRANTS—without prejudice to Defendant’s ability to lay a

proper foundation for Dr. Leo’s testimony—the government’s

motion to exclude Dr. Leo’s testimony.” This left open that

the evidence could be tendered once more with a more precise

explanation on foundation. Redlightning could have preserved

8

At the Daubert hearing, Dr. Leo testified that Agent Lauer’s training

materials included implied promises and that he did not know what

occurred during the confession because it was not recorded. Redlight-

ning’s attorney argued that because the FBI agents did not record the con-

fession, it was left to the jury to determine how Redlightning confessed.

But Redlightning’s counsel did not explicitly argue to the district court

that it was the combination of the absence of recording and Agent Lauer’s

training materials that sufficiently laid the foundation for Dr. Leo’s testi-

mony. In fact, when redirected to the issue of implied promises, Dr. Leo

testified about what Redlightning’s attorneys had told Dr. Leo about an

implied promise; Dr. Leo did not testify about Agent Lauer’s training

materials.

17542 UNITED STATES v. REDLIGHTNING

for appeal the merits of the court’s pretrial exclusionary ruling

either by calling Dr. Leo to testify at trial or by otherwise

seeking reconsideration of the ruling. We see nothing in the

record indicating that Redlightning renewed this claim. That

also argues against a conclusion of abuse of discretion. Tenni-

son v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir.

2001) (“Despite the trial judge’s invitation to make an offer

of proof at trial, Plaintiffs never did. ‘[W]here a district court

makes a tentative in limine ruling excluding evidence, the

exclusion of that evidence may only be challenged on appeal

if the aggrieved party attempts to offer such evidence at

trial.’ ”); Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509

(9th Cir. 1974) (“[W]here evidence offered and objected to

has been temporarily excluded, the party who sought to intro-

duce such evidence must renew his effort in that respect at a

later, appropriate stage of the trial; his failure to do so pre-

cludes him from asserting on appeal that the evidence was

erroneously excluded.”); see also Jenkins v. Keating, 147 F.3d

577, 581 (7th Cir. 1998) (stating that a litigant “may not lull

the judge into thinking [an unrenewed motion] has been aban-

doned and then, after he has lost, pull a rabbit our of his

pocket in the form of the forgotten motion.”) (internal quota-

tion marks and citations omitted); Walden v. Georgia-Pacific

Corp., 126 F.3d 506, 519 (3d Cir. 1997) (internally quoted in

Tennison above); United States v. Holmquist, 36 F.3d 154,

166 (1st Cir. 1994) (“[W]e conclude that, when a judge issues

a provisional in limine pretrial order and clearly invites the

adversely affected party to offer evidence at sidebar for the

purpose of reassessing the scope or effect of the order in the

setting of the actual trial, the exclusion of evidence pursuant

to that order may be challenged on appeal only if the party

unsuccessfully attempts to offer such evidence in accordance

with the terms specified in the order.”); Riverwoods Chap-

paqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 345

(2d Cir. 1994) (“[W]e conclude that appellants abandoned

their objection to the exclusion of the testimony by failing to

re-offer it to the district court after it was conditionally

excluded.”); Christopher B. Mueller & Laird C. Kirkpatrick,

UNITED STATES v. REDLIGHTNING 17543

1 Federal Evidence § 1:16 (3d ed. 2010) (“If the trial judge

. . . indicates that an offer of proof may later be accepted, the

proponent must renew the offer at an appropriate time.”).

Third, Redlightning did not testify at the hearing regarding

the admissibility of Dr. Leo’s proffered expert testimony, but

could have done so without waiving his privilege against self

incrimination. See, e.g., Simmons v. United States, 390 U.S.

at 393-94. Similarly, Redlightning could have given trial testi-

mony recanting his confession, though he was not required to

do so, or he could simply have alerted the FBI if and when

he concluded his confession was a false one.

Fourth, the district court could find Lauer’s statements

about his questioning of Redlightning, or Dr. Leo’s statement

that he saw nothing in the record supporting the idea of a false

confession, to be plausible. There is no abuse of discretion

under Hinkson if the district court’s line of reasoning was

plausible.

Fifth, if we adopted Redlightning’s theory on appeal, there

is no logical stopping place. If a false confession issue is

foundationally presented in this case permitting the chal-

lenged expert testimony of Dr. Leo, it is hard to see why such

testimony could not come in during almost any murder case

where a confession followed a police interrogation, even

where there was no exculpatory DNA or other physical evi-

dence showing guilt of someone other than the person who

confessed, and no evidence of lengthy or coercive question-

ing. Here, there was a manual of Agent Lauer describing rec-

ommended interrogation techniques. But in other cases,

absent a manual, there would still be instances of how the

police or agents involved had interrogated other persons. If

the manual is probative that Lauer used coercive techniques,

with some promise of leniency in exchange for confession,

contrary to his testimony, that would also be the case with

other police who had not written a manual but who had made

promises of leniency during other unrelated interrogations.

17544 UNITED STATES v. REDLIGHTNING

Perhaps this could be avoided if all interrogations leading to

confession were recorded, but the Supreme Court has never

so required, and we decline to require recording of interroga-

tion as a necessary means to avoid testimony about possibly

false confessions.

We do not go so far as to say expert evidence about false

confessions can only be offered in a case where a defendant

has recanted a confession. There may well be cases where

absent a recanted confession, there is still an ample founda-

tion for false confession expert testimony, as, for example, if

there is physical evidence that the perpetrator of the crime

was someone other than the confessor, or if the nature of the

interrogation leading to confession is such that it likely could

induce a false confession. However, it is unsound as a general

matter to permit such expert testimony in every case of a con-

fession of a murder, even where there is no evidence like

DNA suggesting another culprit, and no evidence of any inter-

rogation technique used that is likely to extract a false confes-

sion, and where, as here, the confession came very close to

the start of the interview.

[15] Under these circumstances, where Dr. Leo himself

testified that nothing in the record supported his opinion and

Agent Lauer testified that he had not used any coercive tech-

nique, there was no abuse of discretion in excluding expert

testimony of Dr. Leo. We hold that the district court did not

abuse its discretion in determining that there was no reliable

evidence in the record to support a theory of expert testimony

that the interrogation techniques used raised the risk of a false

confession.

C

Redlightning also challenges the district court’s decision to

limit the testimony of Dr. Breen, a neuropsychologist. The

government objected to five areas of possible testimony by

Dr. Breen:

UNITED STATES v. REDLIGHTNING 17545

1. Any opinion which extrapolates from the defen-

dant’s baseline psychological and mental status,

to reach a conclusion on the effects of the inter-

view procedures on October 2 and 3, 2007 on

that status.

2. Any opinion that the defendant is particularly

susceptible to providing false or untrue informa-

tion in a police interview setting.

3. Any opinion on the connection between the

defendant’s PTSD and his cognitive function,

stress or anxiety level on October 2 and 3, 2007.

4. Any opinion on the connection between the

defendant’s vision problems and his cognitive

function, stress or anxiety level on October 2

and 3, 2007.

5. Any opinion on the connection between the

defendant’s diabetes and his cognitive function,

stress or anxiety level on October 2 and 3, 2007.

The district court excluded Dr. Breen’s testimony regarding

all areas except for area 3, which involved PTSD. With

respect to areas 4 (vision problem) and 5 (diabetes), the court

concluded that Dr. Breen “is not qualified as an expert in

these areas.” With respect to areas 1 (effect of interviews) and

2 (susceptibility falsely to confess), the district court con-

cluded that it was not satisfied that “anything about Dr.

Breen’s [expertise] qualifies him to opine as to Defendant’s

susceptibility to giving a false confession during the police

interrogation on October 2 and 3, 2007.” But the district court

allowed Dr. Breen to testify about Redlightning’s mental con-

dition on those dates and discuss how his mental condition

may affect the weight the jury would give to the confession.

As for PTSD, the district court permitted Dr. Breen to testify

about Redlightning’s PTSD and his cognitive function, stress,

17546 UNITED STATES v. REDLIGHTNING

and anxiety level on those dates but prohibited him from

“opin[ing] as to whether Defendant’s PTSD made him sus-

ceptible to a false confession.”

[16] We conclude that the district court did not abuse its

discretion in determining that Dr. Breen was not qualified to

testify about the physical, medical symptoms of hypoglyce-

mia and whether Redlightning may have falsely confessed

because of his PTSD. Dr. Breen’s proffer implied that he

would testify about the physical medical symptoms of hypo-

glycemia, not the psychological symptoms. It was logical for

the district court to conclude that Dr. Breen, who was not a

physician, was not qualified to testify about the physical

symptoms of hypoglycemia. Similarly, Dr. Breen’s expertise

included analysis of Redlightning’s “mental condition” but

did not extend to whether Redlightning was susceptible to

giving a false confession during a police interrogation. Nota-

bly, Dr. Leo testified that he was unaware of any research

linking PTSD with false confessions. The district court did

not abuse its discretion in excluding this expert testimony

because it was logical to conclude that Dr. Breen was not

qualified to testify about the effects of a police interrogation

but was qualified to testify about Redlightning’s mental con-

dition due to his PTSD.

It was also argued that the district court abused its discre-

tion by limiting Dr. Breen’s testimony regarding how the

absence of diabetes medicine and medical equipment may

have affected Redlightning’s anxiety and how the absence of

Redlightning’s eyeglasses may have increased Redlightning’s

stress. The district court’s decision states that Dr. Breen was

not an expert in the field of diabetes or in the area of vision

impairment. The government contends that there was no sci-

entific basis for Dr. Breen’s testimony regarding the psycho-

logical effects of the absence of Redlightning’s diabetes

medicine and medical equipment as well as the absence of his

eyeglasses. But the district court did not exclude Dr. Breen’s

testimony because of the dearth of scientific evidence; the dis-

UNITED STATES v. REDLIGHTNING 17547

trict court excluded the testimony because Dr. Breen was not

“qualified as an expert in these areas.” The district court had

earlier stated that “Dr. Breen may testify to the Defendant’s

mental condition on October 2 and 3, 2007, and how that may

affect the weight to be given to the confession.” Redlightning

argues that Dr. Breen’s proferred testimony on the subjects of

the diabetes medicine and absence of eyeglasses was inher-

ently focused on Redlightning’s mental condition. Thus, the

argument runs, the district court’s decision to exclude this tes-

timony was illogical and an abuse of discretion. See Hinkson,

585 F.3d at 1262.

[17] It is rather difficult for Redlightning to show error by

the district court in this respect when Dr. Breen did not appear

at his Daubert hearing and so did not present his expertise.

But even if the district court erred, by the limiting of Dr.

Breen’s testimony, any error was harmless. An ophthalmolo-

gist described Redlightning’s visual impairments and pro-

vided a demonstrative aid showing the limitations of

Redlightning’s vision. Further, another psychiatrist testified

that Redlightning’s diabetes could affect his cognitive func-

tioning, rendering Dr. Breen’s testimony on the subject redun-

dant. Dr. Breen was himself able to testify extensively about

Redlightning’s neuropsychological limitations and his PTSD.

Dr. Breen testified, for example, that when Redlightning’s

PTSD was “in the ascendency,” his “ability to process infor-

mation both on a factual basic cognitive basis and on the

metacognitive basis would be compromised.” Dr. Breen’s fur-

ther testimony was unnecessary for the jury to infer that

because Redlightning suffered from PTSD, had limited cogni-

tive functions, and did not have his medicine or eyeglasses,

his confession was less reliable. These points were amply

before the jury. We conclude that it was more probable than

not that any error regarding Dr. Breen’s testimony did not

materially affect the verdict. See United States v. Cohen, 510

F.3d 1114, 1127 (9th Cir. 2007).

17548 UNITED STATES v. REDLIGHTNING

V

Redlightning further argues that the district court erred in

excluding: (1) evidence that in 1987 a detective investigating

the Disanjh murder told one-time suspect John Root a fact

that was unknown to him, namely, that Disanjh had been

strangled; (2) hearsay evidence that a woman reported in 1989

that her boyfriend killed a person fitting Disanjh’s descrip-

tion; and (3) evidence of the number of manual strangulations

that occurred in neighboring King County. We review a dis-

trict court’s rulings on the relevance of evidence for abuse of

discretion, United States v. Tatoyan, 474 F.3d 1174, 1178 (9th

Cir. 2007). Again, we think that application of the standard

from Hinkson is useful, and we conclude that the district court

did not abuse its discretion in excluding this evidence.

A

[18] The parties agree that a key element of Redlightning’s

defense was arguing that his confession was unreliable. Had

Redlightning been able to show that Agent Lauer fed

Redlightning information about the crime that Redlightning,

if innocent, would not otherwise have known, such evidence

may have undermined the reliability of Redightning’s confes-

sion. Consistent with this defense theory, Redlightning sought

to admit evidence that a different detective investigating the

Disanjh murder in 1987 fed information to then-suspect John

Root that Root, if innocent, would not otherwise have known.

If one detective investigating the murder was willing to pass

nonpublic information to a suspect, Redlightning contends

that another investigator may have been willing to do the

same. The district court excluded the evidence of the 1987

interview as irrelevant to what occurred in 2007. Redlight-

ning’s theory was too speculative and attenuated.

It was logical for the district court to conclude that what

occurred during an interview separated by nearly twenty years

and involving different detectives, different law-enforcement

UNITED STATES v. REDLIGHTNING 17549

agencies, and a different suspect was not probative of what

happened during the 2007 questioning. Redlightning argues

that the district court improperly excluded the evidence on the

basis of the court’s personal beliefs—that is, the court said

that it did not think the facts of the first interview were “par-

ticularly helpful for the jury.” But this was not error, because

the district court is correct in saying that an irrelevant fact is

not helpful to a jury. The district court explained that it was

“not convinced that the investigating techniques of the What-

com County Sheriff in 1987 relate to the 2007 FBI investiga-

tive techniques.” We agree. This evidence was not relevant.

The district court did not abuse its discretion.

B

In 1989, Cheryl Lunde, initially as an anonymous tip,

reported to the police that she had seen her boyfriend, Harold

Jones, manually strangle and kill “the blonde female found in

the river last year.” Lunde identified the time of the murder

as August 1987, the month in which Disanjh was killed.

Lunde’s physical description of the victim generally matched

Disanjh. Lunde claimed that Jones threatened the victim with

a piece of rope and strangled the victim with his hands. Rope

was discovered at the Disanjh crime scene. Thus, there were

some parallels. However, Lunde said that victim snorted

cocaine just before she was killed, and blood samples taken

from Disanjh showed no signs of drug use. Lunde also twice

recanted her statement, explaining that she was drunk at the

time she made it, was angry at her boyfriend, and wanted to

get her boyfriend in trouble. The police investigated Lunde’s

tip but could not corroborate it.

Because Lunde died before Redlightning’s trial, Redlight-

ning attempted to admit Lunde’s statement naming Jones as

the killer through the testimony of the investigating detec-

tives. Redlightning submitted that the testimony was admissi-

ble either under Federal Rule of Evidence 807, the residual

17550 UNITED STATES v. REDLIGHTNING

hearsay rule, or simply on constitutional grounds. We dis-

agree.

[19] The district court did not abuse its discretion in

excluding the hearsay evidence. First, Crane v. Kentucky, 476

U.S. 683 (1986), the basis for Redlightning’s constitutional

argument, did not overrule the concepts embedded in the Fed-

eral Rules of Evidence, id. at 690. In Crane, the Supreme

Court stated,

That opportunity [to be heard in defense] would be

an empty one if the State were permitted to exclude

competent, reliable evidence bearing on the credibil-

ity of a confession when such evidence is central to

the defendant’s claim of innocence. In the absence of

any valid state justification, exclusion of this kind of

exculpatory evidence deprives a defendant of the

basic right to have the prosecutor’s case encounter

and survive the crucible of meaningful adversarial

testing.

Id. at 690-91 (internal quotation marks omitted, emphases

added). Here the district court logically concluded that the

evidence was not competent or reliable. Similarly, the district

court did not err in excluding the evidence under the residual

hearsay exception. Under this exception, hearsay that is not

otherwise admissible may still be admissible if it has “equiva-

lent circumstantial guarantees of trustworthiness.” Fed. R.

Evid. 807; United States v. Shryock, 342 F.3d 948, 982 (9th

Cir. 2003). The district court concluded that there were no

such guarantees of trustworthiness because the information

Lunde provided was publicly available, Lunde twice recanted

her statement, and Lunde had motive to lie to get her boy-

friend in trouble. Other factors suggest that Lunde’s statement

was unreliable, including that Lunde’s statement was

unsworn, that the police did not corroborate the details of the

statement, and that no drugs were detected in the victim’s

body even though Lunde said that the victim had used cocaine

UNITED STATES v. REDLIGHTNING 17551

shortly before the murder. The district court did not abuse its

discretion in excluding this hearsay evidence.

C

[20] Disanjh died of manual strangulation, and the What-

com County pathologist testified that the Disanjh murder was

the only case of manual strangulation he had observed in his

thirty-six years of practice in Whatcom County. Thus that

prosecution testimony may have implied that Redlightning

committed a signature crime when strangling Disanjh. To

counter that, Redlightning sought to admit the testimony of

the King County medical examiner, who would have testified

that out of the 2,600 autopsies he performed in his twenty-six

years of practice in King County, “approximately 100 of those

involved manual strangulation.” The district court excluded

the King County statistical evidence because, “under [Federal

Rule of Evidence] 401, I do not believe that this evidence is

relevant.”

The district court did not abuse its discretion in so ruling.

The district court explained that Whatcom County and King

County (which contains the city of Seattle) are similar only to

the extent “that one is an hour and a half drive by freeway

away.” The district court logically explained that King

County, unlike Whatcom County, is “highly urbanized,” and

it was unclear “how the rural areas in each of those two coun-

ties would compare.” The district court logically concluded

that it had no information regarding any “patterns in regards

to strangulations that they occur more often by type of vic-

tim.” Furthermore, Redlightning was able to present to the

jury evidence from the Washington Attorney General show-

ing that manual strangulation occurred in six out of the sev-

enty murders reported in Whatcom County between 1987 and

2007. This estimate of the percentage of manual strangula-

tions in Whatcom County (8.57 percent) is even higher than

the percentage of manual strangulations that the King County

medical examiner would have described (3.85 percent).

17552 UNITED STATES v. REDLIGHTNING

Accordingly, any error in admitting the testimony of the King

County medical examiner was harmless. See United States v.

Edwards, 235 F.3d 1173, 1178-79 (9th Cir. 2000).

We conclude that the district court did not abuse its discre-

tion in excluding (1) evidence that in 1987 a different detec-

tive investigating the Disanjh murder told one-time suspect

John Root a fact unknown to the public; (2) unreliable hearsay

evidence that a woman reported in 1989 that her boyfriend

killed a woman roughly fitting Disanjh’s description; and (3)

evidence of the number of manual strangulations that

occurred in urbanized King County.

VI

Redlightning also challenges the district court’s decision to

admit evidence that he previously confessed to committing

another sexual assault, of which Redlightning was later con-

victed after pleading guilty. Redlightning contends that the

evidence was not relevant and that its admission was

improper under Federal Rules of Evidence 404(b) and 413. In

particular, Redlightning argues that the 1990 confession was

inadmissible if used to show that he had the propensity to

truthfully confess. As we stated earlier, we review for abuse

of discretion a district court’s ruling regarding the relevance

of evidence, Tatoyan, 474 F.3d at 1178. But we review de

novo the district court’s interpretation of the Federal Rules of

Evidence, including whether a particular piece of evidence

falls within the scope of the given rule. United States v. Gar-

rido, 596 F.3d 613, 616 (9th Cir. 2010).

The government sought to admit evidence that Redlight-

ning committed a sexual assault against Linda Rosario in

1990. Redlightning and Rosario had been drinking in a tavern

where they spoke for thirty minutes discussing Redlightning’s

experience in Vietnam, triggering Redlightning’s PTSD. After

Rosario left the tavern, Redlightning tackled Rosario in an

alley. Redlightning choked and beat Rosario, forced her to

UNITED STATES v. REDLIGHTNING 17553

perform oral sex, ripped off her clothes, and penetrated her

vagina with his fist. Redlightning told Rosario she “wasn’t the

first or [she] wouldn’t be the last.” Redlightning choked Rosa-

rio into unconsciousness with her bra. Some forty-five min-

utes later, Redlightning returned to the alley and asked

Rosario who had assaulted her. Redlightning took Rosario

into a restaurant where Rosario contacted the police.

Redlightning later told a police officer that he was responsible

for the assault. The officer advised Redlightning of his

Miranda rights and took Redlightning to the police station. At

the station, the officers again told Redlightning of his

Miranda rights. Redlightning admitted assaulting and choking

Rosario but at first denied having sexual intercourse with her.

Later Redlightning admitted to choking and sexually assault-

ing Rosario. Redlightning pleaded guilty to first-degree rape

and second-degree assault.

[21] Although propensity evidence generally is inadmissi-

ble under Federal Rule of Evidence 404(b) (“Evidence of

other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity

therewith . . . .”), Federal Rule of Evidence 413 provides an

exception for admission of propensity evidence when it

involves the commission of another sexual assault. Subject to

the limitations of Federal Rule of Evidence 403,9 a party may

admit evidence of a sexual assault in order to prove that the

defendant has the propensity to commit another sexual

assault. Cf. United States v. Sioux, 362 F.3d 1241, 1244 (9th

Cir. 2004). In its effort to show that Redlightning committed

the 1990 Rosario assault, the government sought to admit, and

the district court allowed the jury to hear, evidence that

Redlightning confessed to that crime.

9

Before admitting evidence of a prior sexual assault, the district court

must consider the Rule 403 factors, such as the possibility of unfair preju-

dice or confusion of issues. United States v. LeMay, 260 F.3d 1018,

1027-28 (9th Cir. 2001). The district court engaged in that analysis and

Redlightning does not challenge the Rule 403 analysis on appeal.

17554 UNITED STATES v. REDLIGHTNING

[22] The introduction to the jury of Redlightning’s 1990

confession was not error. Under Rule 413, the government

may admit “evidence of the defendant’s commission of

another offense or offenses of sexual assault.” Evidence that

tends to show that Redlightning committed another sexual

assault, namely, his 1990 confession to that sexual assault,

was admissible under Rule 413 because it tends to show that

Redlightning had the propensity to commit another sexual

assault, namely, the Disanjh offense. See Doe ex rel. Rudy-

Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000)

(observing that Rule 414, evidence of similar crimes of child

molestation, like its companion Rule 413, “was passed to

make an exception to Fed. R. Evid. 404(b), which imposed a

blanket prohibition on propensity evidence”). There are many

ways to prove at trial that a defendant committed a different

sexual assault, including admission of the judgment of con-

viction or presenting the testimony of the victim. A different

way to prove that the defendant committed another sexual

assault is through the defendant’s own admission, as occurred

here. See United States v. LeMay, 260 F.3d 1018, 1029 (9th

Cir. 2001) (affirming district court’s ruling admitting evi-

dence of defendant’s confession to a prior act of child moles-

tation under Rule 414). That Redlightning confessed to

sexually assaulting Rosario showed that he had committed

another sexual assault and therefore had the propensity to so

offend again. Admission of Redlightning’s 1990 confession

for this purpose was permitted by the Federal Rules of Evi-

dence.

[23] Similarly, evidence surrounding Redlightning’s 1990

confession was admissible for noncharacter, nonpropensity

purposes. For example, the fact that Redlightning had previ-

ously interacted with police officers and answered their ques-

tions tends to show that Redlightning had experience with the

police and would not be surprised, overpowered, or over-

whelmed by their presence or tactics in 2007. Similarly, the

fact that the police previously gave Redlightning a Miranda

warning and that Redlightning waived his Miranda rights in

UNITED STATES v. REDLIGHTNING 17555

1990 tends to show that Redlightning understood those rights

when given again in 2007. This evidence about the Rosario

assault made it less likely that Redlightning’s mental condi-

tion rendered his 2007 confessions incredible.

[24] Nonetheless, to the extent that the jury was allowed to

infer from Redlightning’s 1990 confession that he had the

propensity to truthfully confess, the district court erred in

admitting the evidence. The special rule permits evidence of

propensity to commit a sexual offense, not propensity to con-

fess. With the exception of propensity to recommit a sexual

offense discussed above, the Federal Rules of Evidence pro-

hibit “other acts”10 evidence for the purpose of showing action

in conformity therewith. Fed. R. Evid. 404(b). This general

prohibition includes evidence used to show that a defendant

has the character for honesty or for truthfully confessing. See

United States v. Hedgcorth, 873 F.2d 1307, 1313 (9th Cir.

1989) (discussing defendant’s “character for truthfulness”);

Fed. R. Evid. 406 advisory committee note (including “hones-

ty” in description of a character trait). To the extent the jury

could improperly infer from Redlightning’s 1990 confession

that he had the character and propensity truthfully to confess,

admission of the 1990 confession for this purpose was

improper.

[25] However, we review for plain error the admission of

the 1990 confession, because Redlightning did not request an

instruction expressly limiting the introduction of the 1990

10

Although courts typically refer to the “other acts” component of Rule

404(b) as “previous bad acts,” the rule is not limited to “bad” conduct.

United States v. Curtin, 489 F.3d 935, 943 n.3 (9th Cir. 2007) (en banc)

(“The ‘acts’ described need not be ‘bad’ acts, even though ‘bad’ is the

improper adjective sometimes misused to describe them. Rule 404(b) cov-

ers not just other crimes or wrongs, but also explicitly ‘other acts’—if the

‘other’ acts are relevant to the purposes specified in the rule such as intent,

motive, preparation, knowledge, etc. The other ‘act’ does not need to be

‘bad,’ just relevant in such a way as to avoid being nothing more than

character or propensity evidence.” (citation omitted)).

17556 UNITED STATES v. REDLIGHTNING

confession for the purposes allowed. The instruction that

Redlightning requested and that the district court gave to the

jury adopted the language of Rule 413—“[E]vidence of the

defendant’s commission of another offense of sexual assault

is admissible and may be considered for its bearing on any

matter to which it is relevant.” Because Redlightning did not

request a limiting instruction precluding consideration of a

propensity truthfully to confess, our review on that issue is

limited to plain error. See United States v. Sauza-Martinez,

217 F.3d 754, 759 (9th Cir. 2000) (holding that where a

defendant did not request a jury instruction necessary to limit

admitted hearsay testimony, even when the government stated

that it would ask for a limiting instruction but failed to do so,

the review is limited to plain error); United States v. Multi-

Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984) (“It

is well-settled that where no limiting instruction is requested

concerning evidence of other criminal acts, the failure of the

trial court to give such an instruction sua sponte is not revers-

ible error.”). Under the plain-error doctrine, the court is to

correct “only particularly egregious errors, those errors that

seriously affect the fairness, integrity or public reputation of

judicial proceedings.” United States v. Young, 470 U.S. 1, 15

(1985) (citation and internal quotation marks omitted).

[26] We conclude that admission of the 1990 confession

was not plain error. The jury was allowed to hear about the

circumstances of Redlightning’s interaction with the police in

1990 (including that Redlightning had been read and waived

his Miranda rights). The jury was also allowed to hear, under

Rule 413, that Redlightning in fact confessed to the 1990 sex-

ual assault. Thus, any error in allowing the jury to infer a pro-

pensity to confess truthfully was not plain error, and was at

most harmless error, because the court could have admitted

the 1990 confession for proper purposes. See United States v.

Cherer, 513 F.3d 1150, 1158 (9th Cir. 2008) (“Thus, even

were we to find that the court erred by admitting the AOL

complaints to prove Cherer’s intent or plan, the error would

be harmless because the court could have properly admitted

UNITED STATES v. REDLIGHTNING 17557

the complaints to prove identity.”); United States v. Mehr-

manesh, 689 F.2d 822, 831 n.10 (9th Cir. 1982) (harmless

error where evidence was admissible for another purpose); see

also United States v. Marin, 523 F.3d 24, 31 (1st Cir. 2008)

(holding that there was no plain error even where the govern-

ment relied improperly on certain admitted evidence because

the evidence was admissible for another purpose). Because

Redlightning’s confession was properly admitted for one pur-

pose and the jury received a proper instruction regarding that

purpose, we cannot say that it was plain error for the jury to

hear that evidence without being instructed that it could not

use it for another purpose.

VII

Redlightning also challenges the district court’s decision to

deny his proposed jury instruction regarding the reliability,

credibility, and truthfulness of his confession. Redlightning

objected to the following instruction, which the jury heard and

which is the Ninth Circuit Model Criminal Jury Instruction

4.1 (2000):

You have heard testimony that the defendant

made a statement. It is for you to decide (1) whether

the defendant made the statement, and (2) if so, how

much weight to give to it. In making those decisions,

you should consider all of the evidence about the

statement, including the circumstances under which

the defendant may have made it.

[27] Redlightning proposed changing the final sentence to

read: “In determining how much weight to give the statement,

it is your responsibility to determine if the statement is volun-

tary and to further determine whether the statement is credi-

ble, truthful and reliable.” We review for abuse of discretion

a district court’s formulation of a jury instruction. United

States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir. 2009). To

the extent the instruction is an incomplete and therefore incor-

17558 UNITED STATES v. REDLIGHTNING

rect statement of law, we review the instruction de novo. Nor-

wood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). We

conclude that the district court did not err in denying

Redlightning’s proposed jury instruction.

Redlightning argues that under Crane v. Kentucky, 476

U.S. 683 (1986), the jury must assess the reliability, truthful-

ness, and credibility of a confession. According to Redlight-

ning, the model jury instruction did not properly charge the

jury with making those determinations because it used the

term “weight.” Redlightning submits that even if the term

“weight” would encompass whether a confession was credi-

ble, truthful, and reliable, a lay jury would not fully under-

stand its responsibilities when instructed with that term.

Redlightning further contends that the jury may have misun-

derstood the term “weight” to mean “sufficiency.”

[28] There is more than one path to a mountaintop. There

is more than one way to instruct a jury on law with a set

scope, conveying it fairly. “[T]he relevant inquiry is whether

the instructions as a whole are misleading or inadequate to

guide the jury’s deliberation.” United States v. Hickey, 580

F.3d 922, 931 (9th Cir. 2009). Crane does not require particu-

lar instructions regarding the jury’s assessment of a confes-

sion; it holds only that after the district court determines that

a confession is voluntary, the jury may assess its credibility.

476 U.S. at 687-90. Here, the model jury instruction was an

accurate statement of law. It directed the jury to assign to the

confession the weight the jury believed appropriate given “all

of the evidence” and “the circumstances under which

[Redlightning] may have made it.” The evidence and the cir-

cumstances here would include the method the FBI agents

used to elicit the statements, the accuracy or inaccuracy of the

statements, and Redlightning’s physical and mental condition.

The jury instruction was an accurate statement of law, and the

district court’s decision to use the model instruction over

Redlightning’s proposed instruction was not illogical, implau-

UNITED STATES v. REDLIGHTNING 17559

sible, or without support in the record.11 See Hinkson, 585

F.3d at 1262.

VIII

Redlightning’s final contention is that the prosecutor

engaged in unconstitutional misconduct by arguing to the jury

during rebuttal closing argument the following:

This gets us to the main theme of the case, and

that is that people don’t confess to things they didn’t

do. Not when they’re faced with prosecution and

time in prison. Not when they know they can be pun-

ished, and they don’t confess with the details. Details

that can be corroborated by physical evidence and by

witness testimony.

....

The reasonable doubt instruction that you’ll

receive tells you that a reasonable doubt is one based

on common sense and reason. Not purely specula-

tion. Common sense tells you that people don’t con-

fess to crimes they didn’t commit.

Redlightning contends that these statements, when com-

bined with the government’s pretrial position that jurors

would be familiar with the concept of false confessions, the

exclusion of Dr. Leo’s testimony, and the known phenomenon

of false confessions, “so infected the trial with unfairness as

to make the resulting conviction a denial of due process.”

Redlightning also contends that the argument was plain error

because the government knew that it was factually untrue and

unsupported by the evidence. Because Redlightning did not

object to the argument at trial, we review for plain error. See

11

We have previously approved the same model instruction. United

States v. Hoac, 990 F.2d 1099, 1108 n.4 (9th Cir. 1993).

17560 UNITED STATES v. REDLIGHTNING

United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008)

(per curiam). We conclude that there was no plain error in the

closing argument. See id. (“When prosecutorial misconduct is

alleged, the issue is whether, considered in the context of the

entire trial, that conduct appears likely to have affected the

jury’s discharge of its duty to judge the evidence fairly.”

(internal quotation marks omitted)).

[29] The prosecutor’s arguments were not improper.

“Prosecutors have considerable leeway to strike hard blows

based on the evidence and all reasonable inferences from the

evidence.” Id. (internal quotation marks omitted). Arguing

that a person would not confess to a crime unless that person

committed the crime is a fair inference to be drawn from com-

mon sense, and the argument is not misconduct because it is

generally true, particularly where the person faces prosecution

and extended imprisonment. While empirical evidence has

shown that at times innocent people have confessed to crimes

that they did not commit, a prosecutor should not be pre-

vented from arguing in closing remarks that common sense

tells us that people do not confess to crimes they did not com-

mit.

To the extent that the prosecutor omitted a qualifier such as

“most people” or “the vast the majority of people” or “only

but the slightest few people” before arguing that people do not

confess to crimes they did not commit, such an omission did

not affect the fairness, integrity, or public reputation of the

judicial proceedings. The prosecutor was providing argument,

not evidence, and Redlightning had the opportunity during his

closing argument to stress the absence of the taped interroga-

tion and Redlightning’s physical and mental condition to

undermine the prosecution’s position that Redlightning’s con-

fession was credible, truthful, and reliable.

IX

We conclude that the district court did not err in (1) refus-

ing to suppress Redlightning’s confessions; (2) excluding cer-

UNITED STATES v. REDLIGHTNING 17561

tain portions of expert testimony regarding the effects of

hypoglycemia and PTSD on a confession; (3) excluding Dr.

Leo’s testimony regarding false confessions; (4) excluding

evidence that a police officer previously supplied a suspect

with nonpublic information about the murder, excluding unre-

liable hearsay evidence pursuant to the residual hearsay

exception that another suspect may have committed the mur-

der, and excluding evidence of manual strangulations in

neighboring King County; and (5) rejecting Redlightning’s

proposed jury instruction regarding the credibility, reliability,

and truthfulness of his confessions. We also conclude that the

prosecutor’s closing argument did not result in plain error. If

and to the extent the district court erred in excluding Dr.

Breen’s testimony about the absence of Redlightning’s medi-

cine, medical equipment, and eyeglasses, that error was harm-

less in light of other evidence admitted. And although the

district court did not limit the jury’s use of Redlightning’s

1990 confession under Rule 413, the absence of a limiting

jury instruction, which Redlightning did not request, did not

constitute plain error.

AFFIRMED.