U.S. v. REDLIGHTNING

gents may have delivered Redlightning by 4:00 p.m. Yet because a 4:00 p.m. arrival would have been ninety minutes after the 2:30 p.m. arraignment calendar regularly began, the agents would have been forced to make special arrangements to process Redlightning'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 government 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 calendar had ended.

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 government reasonably intended to transport Redlightning via automobile 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 reasonable 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 confessed to killing Disanjh and considered then in custody, was 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 unreasonable or unnecessary under the McNabb-Mallory cases. . . ."). The six-hour safe harbor ended at 6:22 p.m. on October 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 "humanitarian 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 calendar 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).").

Redlightning's reliance on United States v. Wilson, is misplaced. Wilson is inapposite because the police in that case intentionally delayed beyond the earliest reasonably available arraignment in order to interrogate 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.

The district court described as "seemingly a dangerous move" the diversion to engage in further interrogation on October 3. Possibly that would be so if the further interrogation in Everett resulted in delivering Redlightning to the magistrate 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 opportunity before his arraignment to speak with an attorney. Because the government's conduct did not result in an unreasonable 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 confessions 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 contends 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 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., USAA Federal Savings Bank 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) (application 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 testimony, the court learned from Dr. Leo that there was nothing in the record at this point to support his theory 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 techniques are present in this case.

The district court concluded that "Dr. Leo's opinion regarding Defendant's confession in this case is based solely on conversations 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 generally 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 support 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 foundation for the proffered expert testimony. In the course of the Daubert hearing, Dr. Leo said that nothing in the record supported his theory of false confession. It was thereafter not unreasonable for the district court to exclude Dr. Leo's proposed expert testimony, particularly where the record affirmatively 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 nothing 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, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). Moreover, Redlightning had not told Dr. Leo, who did not interview Redlightning but rather based his opinions on what counsel told him, that any promises or coercive tactics had occurred.

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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 testimony 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 relevant. 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, 113 S.Ct. 2786.

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 relevant, 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.

Dr. Leo testified that Redlightning's attorneys told Dr. Leo that Redlightning had said that he was given an implied promise of leniency for admitting his guilt, a technique that may lead to a false confession. The district court concluded, however, 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 veracity of Defendant's confession. We agree it could not be reasonable 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").

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 statements 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 interrogation 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 confession). The district court did not err in excluding his testimony.

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 present 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 prepared by Agent Lauer and the decision not to record Redlightning'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 hearing contradicting Agent Lauer's report. As noted above, Dr. Leo did not rely on any interview of Redlightning or statement 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 circumstances 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 examination further supports the conclusion that a false confession was not induced.

Under the circumstances of this case, Agent Lauer's training 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 inducing a false confession. It would be too attenuated to conclude 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 confession early in the examination.

Moreover, there are reasons beyond the speculative nature of Redlightning's theory as to why there was no abuse of discretion 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 explicitly 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.

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. Redlightning's attorney argued that because the FBI agents did not record the confession, 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 testimony. 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.

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 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. Tennison 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 Hitter 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 introduce such evidence must renew his effort in that respect at a later, appropriate stage of the trial; his failure to do so precludes 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 abandoned and then, after he has lost, pull a rabbit our of his pocket in the form of the forgotten motion.") (internal quotation 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 pre-trial 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 Chappaqua 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, 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, 88 S.Ct. 967. Similarly, Redlightning could have given trial testimony 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 challenged 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 evidence showing guilt of someone other than the person who confessed, and no evidence of lengthy or coercive questioning. Here, there was a manual of Agent Lauer describing recommended 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. 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 interrogation 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 foundation 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 confession of a murder, even where there is no evidence like DNA suggesting another culprit, and no evidence of any interrogation technique used that is likely to extract a false confession, and where, as here, the confession came very close to the start of the interview.

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 technique, 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:

1. Any opinion which extrapolates from the defendant's baseline psychological and mental status, to reach a conclusion on the effects of the interview procedures on October 2 and 3, 2007 on that status.

2. Any opinion that the defendant is particularly susceptible to providing false or' untrue information 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 concluded 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 condition 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, and anxiety level on those dates but prohibited him from "opin[ing] as to whether Defendant's PTSD made him susceptible to a false confession."

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 hypoglycemia 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 hypoglycemia, 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. Notably, 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 condition due to his PTSD.

It was also argued that the district court abused its discretion 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 scientific basis for Dr. Breen's testimony regarding the psychological 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 district 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 proffered testimony on the subjects of the diabetes medicine and absence of eyeglasses was inherently focused on Redlightning's mental condition. Thus, the argument runs, the district court's decision to exclude this testimony was illogical and an abuse of discretion. See Hinkson, 585 F.3d at 1262.

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 ophthalmologist described Redlightning's visual impairments and provided a demonstrative aid showing the limitations of Redlightning's vision. Further, another psychiatrist testified that Redlightning's diabetes could affect his cognitive functioning, rendering Dr. Breen's testimony on the subject redundant. 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 information both on a factual basic cognitive basis and on the metacognitive basis would be compromised." Dr. Breen's further testimony was unnecessary for the jury to infer that because Redlightning suffered from PTSD, had limited cognitive 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).

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 boy-friend killed a person fitting Disanjh's description; and (3) evidence of the number of manual strangulations that occurred in neighboring King County. We review a district 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

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 Redlightning's confession. 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. Redlightning'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 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 "particularly 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 Whatcom County Sheriff in 1987 relate to the 2007 FBI investigative 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, Redlightning attempted to admit Lunde's statement naming Jones as the killer through the testimony of the investigating detectives. Redlightning submitted that the testimony was admissible either under Federal Rule of Evidence 807, the residual hearsay rule, or simply on constitutional grounds. We disagree.

The district court did not abuse its discretion in excluding the hearsay evidence. First, Crane v. Kentucky, 476 U.S. 688, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the basis for Redlightning's constitutional argument, did not overrule the concepts embedded in the Federal Rules of Evidence, id. at 690, 106 S.Ct. 2142. 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 credibility 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, 106 S.Ct. 2142 (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 "equivalent 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 un-sworn, 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 shortly before the murder. The district court did not abuse its discretion in excluding this hearsay evidence.

C

Disanjh died of manual strangulation, and the Whatcom 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 counties 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 victim." Furthermore, Redlightning was able to present to the jury evidence from the Washington Attorney General showing that manual strangulation occurred in six out of the seventy murders reported in Whatcom County between 1987 and 2007. This estimate of the percentage of manual strangulations 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). 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 discretion in excluding (1) evidence that in 1987 a different detective 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';; 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 convicted 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. Garrido, 596 F.3d 613, 616 (9th Cir. 2010).

The government sought to admit evidence that Redlightning 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 Redlightnings 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 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 Rosario into unconsciousness with her bra. Some forty-five minutes 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 assaulting Rosario. Redlightning pleaded guilty to first-degree rape and second-degree assault.

Although propensity evidence generally is inadmissible 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, 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.

Before admitting evidence of a prior sexual assault, the district court must consider the Rule 403 factors, such as the possibility of unfair prejudice 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.

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 conviction 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 evidence of defendant's confession to a prior act of child molestation 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 Evidence.

Similarly, evidence surrounding Redlightning's 1990 confession was admissible for noncharacter, nonpropensity purposes. For example, the fact that Redlightning had previously interacted with police officers and answered their questions tends to show that Redlightning had experience with the police and would not be surprised, overpowered, or overwhelmed 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 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 condition rendered his 2007 confessions incredible.

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 confess. With the exception of propensity to recommit a sexual offense discussed above, the Federal Rules of Evidence prohibit "other acts" 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 "honesty" 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.

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 some-times misused to describe them. Rule 404(b) covers 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)).

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 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. Midti-Monagement, 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 reversible 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, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (citation and internal quotation marks omitted).

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 sexual assault. Thus, any error in allowing the jury to infer a propensity 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 the complaints to prove identity."); United States v. Mehrmanesh, 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 government relied improperly on certain admitted evidence because the evidence was admissible for another purpose). Because Redlightning's confession was properly admitted for one purpose 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.

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 voluntary and to further determine whether the statement is credible, 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 incorrect statement of law, we review the instruction de novo. Norwood 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, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the jury must assess the reliability, truthfulness, and credibility of a confession. According to Redlightning, 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 credible, truthful, and reliable, a lay jury would not fully understand its responsibilities when instructed with that term. Redlightning further contends that the jury may have misunderstood the term "weight" to mean "sufficiency."

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 particular instructions regarding the jury's assessment of a confession; 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, 106 S.Ct. 2142. 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 circumstances 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, implausible, or without support in the record. See Hinkson, 585 F.3d at 1262.

We have previously approved the same model instruction. United States v. Hoac, 990 F.2d 1099, 1108n. 4 (9th Cir. 1993).

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 punished, 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 speculation. Common sense tells you that people don't confess to crimes they didn't commit

Redlightning contends that these statements, when combined 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 un-fairness 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 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)).

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 common 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 prevented from arguing in closing remarks that common sense tells us that people do not confess to crimes they did not commit.

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 interrogation and Redlightning's physical and mental condition to undermine the prosecution's position that Redlightning's confession was credible, truthful, and reliable.

IX

We conclude that the district court did not err in (1) refusing to suppress Redlightning's confessions; (2) excluding certain 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 unreliable hearsay evidence pursuant to the residual hearsay exception that another suspect may have committed the murder, 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 medicine, medical equipment, and eyeglasses, that error was harmless 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.