UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4415
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH ANDREW BELYEA, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-03-524)
Argued: October 28, 2005 Decided: December 28, 2005
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Remanded with instructions by unpublished per curiam opinion.
ARGUED: Geremy Charles Kamens, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Erik Russell
Barnett, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Frank W. Dunham, Jr., Federal Public Defender, Alexandria,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Belyea was convicted for possession of a firearm
by an unlawful user of a controlled substance in violation of 18
U.S.C. § 922(g)(3). Belyea appeals his conviction on the grounds
that the district court erred in excluding expert testimony on
false confessions and in denying his motion for a new trial based
on newly discovered evidence. We remand for further consideration
of these issues. Belyea also appeals his sentence enhancement for
obstruction of justice, and we hold this issue in abeyance pending
the outcome of the proceedings on remand.
I.
A.
In August 2001 Belyea attended a party hosted by Michelle
Gay at her parents’ home in Sterling, Virginia. This was the only
time Belyea ever visited the Gay home. The partygoers, including
Belyea, took methamphetamine. Just over one year later, in October
2002, Michelle Gay’s father, Ralph Gay, discovered that three guns
were missing from a wooden hope chest in his bedroom. When Mr. Gay
reported the matter to the police, it was discovered that two of
his missing (or stolen) guns, a revolver and a semi-automatic
handgun, had been found during the October 2001 search of a car
belonging to a suspected drug dealer in Washington, D.C.
2
In August 2003 Special Agent Todd Freiwald from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
interviewed Belyea about the suspected theft of Ralph Gay’s guns.
When Belyea’s memory appeared to falter, Agent Freiwald told Belyea
two lies: that one of the stolen guns had been used in a murder in
D.C. and that it bore only one fingerprint, Belyea’s. Upon hearing
these lies, Belyea was “pretty scared” and “continued to shake.”
J.A. 277. Freiwald then warned Belyea that the authorities could
hold him as a material witness in a D.C. jail, where “a skinny
white boy like [Belyea] wouldn’t last very long.” J.A. 244. The
agent suggested that Belyea could avoid D.C. jail by providing
information on the guns.
Belyea ultimately confessed to Agent Friewald, stating
that he had taken two guns, one revolver and one semi-automatic
handgun, from the hope chest in the Gay bedroom, placed the guns in
a laundry basket, and placed the basket in his car. He further
confessed that he, Michelle Gay, and Michelle Gay’s boyfriend at
the time, Kevin Bruther, drove to a McDonald’s in Sterling,
Virginia, where Bruther traded the guns to a white male for drugs.
Belyea renounced this confession at trial, however, claiming that
he had made up most of it. At trial he highlighted inconsistencies
between his confession and other trial evidence, including that
three guns were stolen, not two, and that they were traded to
3
Bruther’s African-American drug dealer in Washington, D.C., not a
white drug dealer in Sterling, Virginia.
Belyea was charged with possession of a stolen firearm in
violation of 18 U.S.C. § 922(j) and possession of a firearm by an
unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3). Prior to trial Belyea moved in limine to introduce
expert testimony on factors that correlate with false confessions.
The district court rejected this motion on the ground that the
testimony would not help the jury because “jurors [already] know
people lie.” J.A. 57. Because the court concluded only that
testimony about confessions would not assist the jury, it did not
conduct a Daubert analysis on whether such testimony would be
reliable. The court refused defense counsel’s request to proffer
the proposed testimony, explaining that the record was sufficient
and that Belyea was otherwise free to argue at trial that the
confession was false. At trial the court denied Belyea’s renewed
motion to admit the expert testimony after the government was
allowed to elicit from Agent Freiwald that he had been trained not
to use coercive interrogation tactics.
B.
Michelle Gay testified at trial that she was running out
of drugs during the August 2001 party and, needing money to buy
more, decided to cash some of her savings bonds. These bonds were
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locked away in her father’s hope chest where his handguns were kept
in their original Smith & Wesson factory boxes. When Ms. Gay could
not find the key to the chest, she asked Bruther and Belyea to
break into the chest for her. Although the two men tried picking
the lock and unscrewing the back hinges, their efforts were
unsuccessful. Michelle Gay then found the key and retrieved
several bonds. According to her, “[n]obody touched anything in
[the chest]” except for the bonds, J.A. 163; no one handled or
stole the guns, though the firearms boxes were clearly visible when
she opened the chest. The government introduced Belyea’s
confession that he took the guns from the hope chest during the
party and that Bruther traded the guns for drugs.
Throughout trial and in the jury instructions, the
government and the district court equated the possession element in
Count One, possession of a stolen firearm, with that in Count Two,
possession of a firearm by an unlawful user of a controlled
substance, on the theory that “the act of the possession and the
act of a gun becoming stolen really occur[ed] at the same time.”
J.A. 357. The court limited the jury instructions on both counts
to actual possession (“to have direct physical control over
something,” even if just for a moment), explaining that “if the
jury accepts the confession as accurate, it is a confession to
actual possession and to nothing else.” J.A. 293. The court gave
5
no instruction on constructive or joint possession despite the
government’s request.
The jury found Belyea not guilty on Count One (possession
of a stolen firearm) but guilty on Count Two (possession of a
firearm by an illegal drug user). Belyea moved for a new trial on
the basis of newly discovered evidence and the court’s exclusion of
expert testimony on confessions.
Belyea presented the newly discovered evidence at a post-
trial hearing. Four of Bruther’s acquaintances and one
investigator from the Federal Public Defender’s Office testified
that Bruther had repeatedly and consistently said that he alone had
stolen the guns from the hope chest in the Gay bedroom and that
Belyea had had “zero involvement” in the theft. J.A. 380, 452.
Bruther told one of these witnesses that he had lied to the ATF
when he pinned the gun theft on Belyea because he (Bruther) was
terrified of being sent back to prison, having just been released
on an unrelated charge. Bruther began making these inculpatory
comments about Belyea in the fall of 2002, months before either he
or Belyea was interviewed about the gun theft, and Bruther
continued making these comments until February 2003, when he
committed suicide (a month before the post-trial hearing). His
comments were “always the same,” J.A. 451, with one minor
inconsistency: he inflated the quantity of drugs for which he had
6
traded the guns after being teased by his friends for making a bad
deal.
According to the newly discovered evidence, the gun theft
did not occur during the August 2001 party when Belyea was in the
Gay house. Rather, the theft occurred on an entirely separate and
later occasion, perhaps days after the party: Bruther and Michelle
Gay were preparing to drive away from the Gay home when Bruther
(alone) ran back inside, broke into the chest, and stole the guns
without anyone else’s knowledge or participation. Bruther said he
chose Belyea as his fall guy because he knew that Belyea had a “bad
past,” J.A. 463, had been in the Gay bedroom where the hope chest
was located, and had suggested to Bruther during their unsuccessful
effort at the party to break into the chest that they remove the
hinges rather than pick the lock.
The district court denied Belyea’s motion for a new trial
on grounds that the new evidence was neither material nor likely to
result in an acquittal at a new trial. The court concluded that
the “new evidence does not undermine the jury’s verdict that Belyea
possessed the firearms before they were stolen” -- that he
“exercised dominion and control over the firearms, at least before
they were removed from the Gay bedroom.” J.A. 517-18. The court
thereby invoked the standard for constructive possession, not
actual possession, even though the jury was never instructed on
7
constructive possession. The court also declined to reconsider its
exclusion of expert testimony on the subject of confessions.
At sentencing Belyea objected to the two-level
enhancement for obstruction of justice recommended in his
presentence report. The court nonetheless imposed the enhancement
upon finding that Belyea was “not truthful when he testified.”
J.A. 523.
Belyea now appeals.
II.
Belyea first argues that the district court erred by
excluding expert testimony on factors that correlate with false
confessions. We review for abuse of discretion the district
court’s decision to exclude this testimony. See, e.g., United
States v. Crisp, 324 F.3d 261, 265 (4th Cir. 2003). Expert
testimony is admissible under Rule 702 of the Federal Rules of
Evidence if it involves scientific, technical, or specialized
knowledge that will assist the trier of fact to understand the
evidence or determine a fact in issue. The testimony must be both
reliable and relevant. Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 589-92 (1993); see also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 147-49, 152 (1999). While a trial court has broad
discretion in deciding whether to admit expert testimony, it abuses
this discretion if it makes an arbitrary decision or otherwise
8
makes an error of law. See United States v. Barile, 286 F.3d 749,
753 (4th Cir. 2002).
Daubert requires a nuanced, case-by-case analysis of
whether the proposed expert testimony will assist the trier of
fact. See Daubert, 509 U.S. at 591-92; United States v. Harris,
995 F.2d 532, 534-35 (4th Cir. 1993) (noting pre-Daubert trend of
eschewing per se rules of inadmissibility and instead making
particularized determinations). But see United States v. Prince-
Oyibo, 320 F.3d 494, 500-01 (4th Cir. 2003) (noting that Daubert
requires “nuanced evaluation” of evidence, but upholding per se ban
in limited context of polygraph evidence). Rather than making
broad generalizations about evidentiary value, a court must
determine whether expert testimony will help the jury, given the
facts in issue in the particular case.
The district court failed to make such a particularized
determination here. The court’s essential reason for excluding the
expert testimony on false confessions was that “jurors know people
lie.” J.A. 57. This statement may be true as a general
proposition, but it does not necessarily apply in this case; it
does not mean that jurors know that people confess falsely or that
someone in Belyea’s position may be more likely to do so. Jurors
may know that people lie in everyday life or even sometimes under
oath, particularly when they believe lying to be advantageous.
Jurors may not know, however, that people lie on occasion to their
9
own detriment by falsely confessing to crimes that they did not
commit. The phenomenon of false confessions is counter-intuitive
and is not necessarily explained by the general proposition that
“jurors know people lie.” See Advisory Committee Notes, Fed. R.
Evid. 804(b)(3) (suggesting that statements against interest as
rare); United States v. Smithers, 212 F.3d 306, 315-16 (6th Cir.
2000) (stating that district court was “simply wrong” for assuming
that jurors know to be skeptical of eyewitness testimony when many
factors affecting memory are counter-intuitive, complex, and not
fully known by jurors).
The court’s explanation here -- that whether a confession
is false is “something juries decide all the time, and I don’t need
an expert to help them in that respect” -- suggests that expert
testimony on false confessions is never admissible. J.A. 56. This
approach is erroneous as a matter of law because it overlooks
Daubert’s general requirement for a particularized determination in
each case. The court should have inquired into whether jurors
commonly know about false confessions as a particular form of lying
and about specific factors that may correlate to false confessions.
See United States v. Lester, 254 F. Supp. 2d 602, 608 (E.D. Va.
2003) (noting that Rule 702 and Daubert render inadmissible only
testimony on matters obviously within common knowledge of jurors).
The specifics of this case mandate a particularized inquiry: a
federal agent twice lied to Belyea during his interrogation; Belyea
10
was a drug addict, in prison at the time on an unrelated charge,
and admittedly terrified during the interrogation; and Belyea has
suffered from clinical depression and behavioral problems
throughout his life.
It appears to us that the expert in this case, Dr.
Solomon Fulero, would have addressed whether and how these
particular factors correlate to false confessions. Belyea’s motion
in limine states that “Dr. Fulero would testify that false
confessions in fact occur, and that various techniques used by law
enforcement agents, such as false accusations and false promises
can influence a person’s decision to confess falsely.” J.A. 16.
In addition, Dr. Fulero would apparently testify that “particular
characteristics of the person interrogated, such as . . . anxiety
problems, can affect the likelihood that a confession is false.”
J.A. 16. The record on appeal is sparse, however, on Dr. Fulero’s
proposed testimony because the district court refused defense
counsel’s request to make a proffer of the testimony. Without more
detailed information, it is impossible to determine whether the
expert testimony would aid the jury in this case. But the limited
record suggests that the testimony would be helpful by at least
clarifying that some people, contrary to common sense, make false
inculpatory statements. See United States v. Hall, 93 F.3d 1337,
1343-45 (7th Cir. 1996) (finding abuse of discretion where court
excluded possibly critical expert testimony on personality disorder
11
that made false confessions more likely). Accord United States v.
Shay, 57 F.3d 126, 133-34 (1st Cir. 1995) (mental disorder).
The foregoing conclusions require us to remand the case
to the district court for a more complete analysis of whether the
expert testimony is admissible under Daubert and Rule 702;
specifically, whether it would aid the jury in this case and, if
so, whether it satisfies the Daubert factors for assessing the
reliability of expert scientific or professional testimony.
Daubert, 509 U.S. at 591-95; United States v. Dorsey, 45 F.3d 809,
813 (4th Cir. 1995). In conducting this analysis, the district
court should take into account any other applicable evidentiary
rules, including Rule 403. Daubert, 509 U.S. at 595.
If the district court determines on remand that Dr.
Fulero’s testimony should have been admitted, its erroneous
exclusion at trial cannot be deemed harmless. The government has
not raised the harmlessness issue in this appeal. However, nine
other circuits have concluded or at least suggested that appellate
courts may raise the issue of harmlessness sua sponte, depending on
the length and complexity of the record, the certainty of
harmlessness, and the prospect that reversal will result in
protracted or futile proceedings. See, e.g., United States v.
Gonzales-Flores, 418 F.3d 1093, 1100-01 (9th Cir. 2005) (citing
cases). Assuming without deciding that our circuit allows the
harmlessness inquiry to be considered sua sponte and that the
12
inquiry is appropriate in this case, we conclude (as we said above)
that if Dr. Fulero’s testimony is admissible, its exclusion was not
harmless.
Belyea’s confession was crucial to his conviction. See
J.A. 516 (district court describing confession as “key evidence”
against Belyea). Indeed, it is the only direct evidence that
Belyea actually possessed the guns -- the theory of possession on
which he was tried and convicted. The remaining evidence,
including that Belyea helped in the attempt to pick the lock of the
chest and knew the style of the stolen guns, is far from definitive
on the issue of actual possession.
Moreover, Belyea was not allowed to introduce potentially
forceful evidence supporting his contention that his confession was
false. The excluded expert testimony would have explored, among
other factors, characteristics (such as anxiety problems) and
interrogation techniques (such as false accusations) that make
suspects more likely to confess falsely. Belyea was of course
still able to challenge the confession at trial, for example by
testifying that he made up most of it and by highlighting
discrepancies between his confession and the remaining evidence of
the crime. He was also given leeway to suggest that he was
vulnerable at the time of his interrogation: he was in prison at
the time, a drug addict, and lied to by the ATF agent. But he
could not challenge the confession on a separate and potentially
13
compelling ground. He could not explain that false confessions,
while counter-intuitive, do in fact occur and are more likely to
occur in certain circumstances, perhaps in the very circumstances
of his case. This evidence would likely have altered the
complexion of the case. See Smithers, 212 F.3d at 317.
Given the critical weight of Belyea’s confession, we
cannot say that any error in excluding Dr. Fulero’s testimony on
false confessions was harmless. See Shay, 57 F.3d at 134. We
simply lack the requisite assurance that any error did not
“substantially sway[]” the jury’s judgment. United States v.
Weaver, 282 F.3d 302, 314 (4th Cir. 2002) (internal quotation marks
and citations omitted).
If the district court concludes on remand that Dr.
Fulero’s testimony should have been admitted, the error of
excluding his testimony would not be harmless, and the court should
enter an order granting a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure.
14
III.
Belyea next argues that the district court erred in
denying his motion for a new trial that was based on newly
discovered statements by Bruther, who said that Belyea did not
participate in or even witness the theft of Ralph Gay’s handguns.
A motion for a new trial based on newly discovered evidence should
be granted only if: (1) the new evidence is in fact newly
discovered; (2) facts are presented from which the court may infer
due diligence on the part of the movant; (3) the evidence is not
merely cumulative or impeaching; (4) the evidence is material to
the issues involved; and (5) the evidence is “of such a nature that
it would probably result in an acquittal at a new trial.” United
States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000) (internal
quotation marks and citation omitted); Fed. R. Crim. P. 33. We
review the district court’s denial of a Rule 33 motion for abuse of
discretion. United States v. Russell, 221 F.3d 615, 619 (4th Cir.
2000).
The district court denied Belyea’s motion on grounds that
the new evidence was neither material to the issue of possession,
nor would it probably result in an acquittal at a new trial.
Specifically, the court reasoned that the new evidence does not
undermine the trial evidence supporting Belyea’s conviction on
Count Two (possession of a firearm by a drug user), and for this
reason the new evidence is immaterial to his conviction and would
15
not probably result in an acquittal at a new trial. The court
hinged these conclusions on a theory of constructive possession:
that there was “more than sufficient evidence” at trial to support
a finding that Belyea “exercised dominion and control over the
firearms, at least before they were removed from the Gay bedroom.”
J.A. 516-17. Cf. United States v. Gallimore, 247 F.3d 134, 137
(4th Cir. 2001) (defining constructive possession). This evidence,
the court said, is undisturbed by Bruther’s newly discovered
statements. The problem with this reasoning is that the court did
not give a broad instruction on possession, one that covered both
actual and constructive possession and both individual and joint
possession.
Rather, the court limited the jury instruction on both
counts to actual possession, “to have direct physical control over
something,” on the theory that this is purely “an actual possession
case”; the court’s only elaboration on this instruction was that
“momentary possession is sufficient.” J.A. 292-94, 339, 342.
Given this limited jury instruction, we must consider whether the
newly discovered evidence undermines Belyea’s conviction for actual
possession of a firearm, not constructive possession. See United
States v. Brodwin, 292 F. Supp. 2d 484, 494 (S.D.N.Y. 2003) (in
evaluating a motion for a new trial, “the [c]ourt must consider how
[the] evidence was presented in [the actual] trial, and not how it
might be presented in some other trial”).
16
When examined through the actual possession lens, the
split verdicts -- acquittal on Count One, conviction on Count Two
-- suggest that the jury believed that Belyea actually possessed
the guns in the Gay bedroom, even if just for a moment, before they
were removed from the home. These jury verdicts belie the court’s
and prosecution’s theory throughout trial that the evidence of
possession for both counts is “obviously the same” and “the act of
possession and the act of the gun becoming stolen really occur at
the same time.” J.A. 310, 357. The district court, while
conceding that the verdicts appear inconsistent in light of the
trial theory, nonetheless characterized them as reasonable, and we
do not question this characterization. See United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (“[I]f the evidence
supports different, reasonable interpretations, the jury decides
which interpretation to believe.”)
We nevertheless conclude that the newly discovered
evidence undermines Belyea’s conviction for actual possession. It
suggests that Bruther stole the guns on an entirely separate and
later occasion than the occasion described at trial, when Belyea
and Bruther were trying to pick the lock of the hope chest during
the party in an effort to access the bonds within. Rather, Bruther
may have stolen the guns days or even weeks after the party in an
altogether different scene: he and Michelle Gay were preparing to
17
drive away from the Gay home when he ran back inside, alone.
According to Bruther’s repeated and generally consistent
admissions, Belyea had “zero involvement” in this theft, “had
nothing to do with it.” J.A. 452, 462-63. Bruther only implicated
Belyea to law enforcement on one occasion because he knew that
Belyea had a “bad past” and had been in the Gay bedroom once
(during the incident described at trial), when the two men joined
in an unsuccessful effort to break into the chest and retrieve the
bonds. J.A. 463.
By Bruther’s account, Belyea was not even in the Gay
bedroom at the time of the theft; he did not know about or
participate in the theft. Because the new evidence questions
whether Belyea ever actually (or even constructively) possessed the
guns, it qualifies as being material to the central issue of
possession.
Moreover, the new evidence would probably result in an
acquittal at a new trial because it so marginalizes and overshadows
the inculpatory evidence that it would likely raise reasonable
doubt in jurors’ minds that Belyea ever possessed the guns. For
example, at a new trial Belyea’s admission that he helped Bruther
try to break into the hope chest would be measured against
Bruther’s repeated admissions that he (Bruther) stole the guns on
a different occasion without any assistance from Belyea. The most
damning evidence against Belyea, his knowledge of the type of guns
18
in the chest, would have less significance in light of the new
evidence. (In any event, Belyea’s general description of the guns
is not so damning when examined in the context of the possession
issue, since it may mean that Belyea saw the guns or gun boxes at
some point but never actually handled the guns; Michelle Gay
testified that she, Bruther, and Belyea all saw the Smith & Wesson
boxes when she retrieved her bonds at the party.) Finally, the new
evidence casts serious doubt on the prosecution’s theory that
Belyea and his friends “stole those guns so that they could get
more drugs.” J.A. 99.
Because the newly discovered evidence is material and
would probably result in an acquittal at a new trial, we conclude
-- assuming the evidence meets the standard for trustworthiness
(see below) -- that the district court abused its discretion in
denying Belyea’s motion for a new trial based on the newly
discovered statements by Bruther.
The government argues on appeal that we should affirm the
district court’s denial in any case because the new evidence,
exculpatory statements against interest made by an unavailable
declarant, is not admissible under Rule 804(b)(3) of the Federal
Rules of Evidence. We are unable to address this argument on the
present record because the district court did not reach the issue
of whether “the corroborating circumstances clearly indicate the
trustworthiness” of Bruther’s statements. Fed. R. Evid. 804(b)(3);
19
see J.A. 490 (finding witnesses who recounted Belyea’s statements
“completely credible” and expressing “no doubt” that Bruther made
statements, but declining to rule on whether statements themselves
were true). The district court must address this issue in the
first instance on remand.
If the district court concludes on remand that the newly
discovered evidence is admissible under Rule 804(b)(3), it should
enter an order granting a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure.
IV.
We remand the case to the district court for proceedings
consistent with this opinion. We retain jurisdiction over the
appeal so that we may review the district court’s orders on remand
with regard to the admissibility of Dr. Fulero’s expert testimony
and Bruther’s newly discovered statements. In the meantime, we
hold in abeyance the issue relating to Belyea’s challenge to his
sentence.
REMANDED WITH INSTRUCTIONS
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