United States v. Stuart Easchief ( 2010 )

FILED
NOT FOR PUBLICATION JAN 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10018
Plaintiff - Appellee, D.C. No. 2:08-CR-00103-SMM-1
v.
MEMORANDUM *
STUART W. EASCHIEF,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted January 11, 2010
San Francisco, California
Before: WALLACE, HUG and CLIFTON, Circuit Judges.
Stuart Easchief appeals from his conviction under 18 U.S.C. §§ 81 and 1153
for committing arson within Indian country. We affirm.
Whether or not Easchief was in custody when he confessed to enkindling his
home, he was not subjected to interrogation. The EMT’s question about what was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
going on was not interrogation because there was no reason that the EMT should
have known that the query was “reasonably likely to elicit an incriminating
response.” Rhode Island v. Innis, 446 U.S. 291, 302 (1980). The EMT was
evaluating whether Easchief was disoriented, and Easchief had previously
answered similar questions without incriminating himself.
We need not decide whether the EMT’s follow-up question, “why?” was
custodial interrogation. In light of the other evidence of Easchief’s motive and
guilt, including his statement to a neighbor that he had torn up the house because
he was upset with his wife and his response to the EMT’s initial question, we are
convinced beyond a reasonable doubt that the admission of Easchief’s response to
the follow-up question was harmless even if it was erroneous. See Chapman v.
California, 386 U.S. 18, 24 (1967).
The district court did not abuse its discretion by denying Easchief’s motion
to hold a Daubert hearing before allowing the government’s expert witness to
testify. Easchief made nothing but conclusory assertions of unreliability in his
motion, and added nothing during the hearing concerning that motion. Since there
was no serious dispute about either the expert’s qualifications or the validity of her
methodology, the district court correctly declined to hold “unnecessary ‘reliability’
proceedings” in this ordinary case where the reliability of the expert’s methods was
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“properly taken for granted.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999).
It appears that the lack of a material dispute also distinguishes this case from
United States v. Jawara, 474 F.3d 565, 582–83 (9th Cir. 2007), and Elsayed
Mukhtar v. California State University, 299 F.3d 1053, 1064 (9th Cir. 2002). But
even if an explicit finding of reliability by the district court was required, its
omission was harmless. See Jawara, 474 F.3d at 583.
The government’s expert’s testimony about her confidence in her opinion
was an invited response to Easchief’s cross-examination, and the district court
correctly allowed it, particularly in the absence of an objection, a motion to strike,
or any attempt to attack the statement during recross-examination. See United
States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995). Easchief’s argument that the
district court refused to allow the defense’s expert to assess the propriety of the
government’s expert’s confidence in her opinion is baseless. Easchief’s attorney
asked a leading question, the district court correctly sustained the government’s
objection to the form of the question, and Easchief’s counsel moved on. There was
no refusal.
The government’s expert’s testimony that the fire was set intentionally did
not, more likely than not, materially affect the verdict, so even assuming that
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Easchief preserved his objection, any error in the admission of the testimony was
harmless. See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).
Given Easchief’s own statements about how the fire started, the expert’s testimony
concerning intent was unnecessary to the verdict. Easchief argues that the
admission of this testimony materially affected the verdict because the jury might
have otherwise found that Easchief’s disorientation at the scene rendered his
confession unreliable. But Easchief’s false statements concerning his identity and
whether his children were inside the burning home are as probative of an intent to
deflect blame as they are of disorientation.
Easchief’s remaining arguments are also unpersuasive. We do not conclude
that the government engaged in prosecutorial misconduct, but even if it did, the
weight of the evidence against Easchief precludes reversal under the plain error
standard. See United States v. Romero-Avila, 210 F.3d 1017, 1021–22 (9th Cir.
2000). Finally, as Easchief acknowledges, his argument concerning jury
instructions is foreclosed by United States v. Doe, 136 F.3d 631, 635 (9th Cir.
1998).
AFFIRMED.
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