United States v. Stuart Easchief , 363 F. App'x 526 ( 2010 )


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  •                                                                            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    NOT FOR PUBLICATION                              JAN 29 2010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
    2
    “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
    3
    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.
    4