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.