PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES KEITH BEIERLE, Defendant - Appellant. No. 14-8049

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRI CT OF WYOMING (D.C. No. 2:13-C R-00098-NDF-1)

Robert T. Fishman, Of Counsel, Ridley , McGreevy & Winocur, PC , Denver, Colorado, for Defendant - Appellant. Thomas Szott, Assistant United States Atto rney, (Christopher A. Crofts, United States Attorney, and Stuart S. Healy, III, Assist ant United States Attorney, on the brief), Cheyenne, Wyoming, for Plaintiff – Appellee.

Before TYMKOVICH , Chief Judge, HARTZ , and BALDOCK , Circuit Judges.

HARTZ , Circuit Judge.
A jury convicted Defendant James Beie rle of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He was sent enced to 15 years’ imprisonment after FILED United States Court of Appeals Tenth Circuit 

### January 19, 2016
Elisabeth A. Shumaker Clerk of Court2 the court found him eligible for a sentence enhancement unde r the residual clause of the Armed Career Criminal Act (ACCA), see id. § 924(e)(2)(B)(ii). Defendant raises three contentions on appeal: (1) he was denied due process when he was not present for a conference to settle jury inst ructions; (2) the district court committed plain error by permitting the deputy sheriff to whom he confessed to testify that there were no indications during the interview that Defendant was being untruthful; and (3) his sentence under the ACCA was unlawful. We reject Defendant’s first two contentions and accept his third. Defendant’s absence from the in struction conference di d not deprive him of due process because he had nothing to contribute to the purely legal matters that were decided at the conference. Even if the admission of the deputy’s testimony was error, Defendant failed to show prejud ice in light of the overwhel ming evidence of guilt. And Defendant’s sentence must be set aside becau se the residual clause of the ACCA is unconstitutionally vague. See Johnson v. United States , 135 S. Ct. 2551, 2563 (2015). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Defendant’s conviction, vacate his sentence, and remand to the di strict court for resentencing. I. THE TRIAL The trial was conducted in February 2014. The prosecution called four witnesses: Deputy Ryan Martinez of the Laramie C ounty Sheriff’s Office (L CSO), LCSO Deputy Kurt Wilson, LCSO Sergeant Mark Hollanbach, and Specia l Agent Steve McFarland of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosiv es. Deputy Martinez testified that on the night of January 13, 2013, he and another deputy went to Defendant’s3 house to interview him after receiving a di sturbance call from Richard Redfern and Chris Covalt. When Defendant did not answer the door, th e deputies went to see if he was in the shop building on the pr operty. They never found Defendant; but while walking around, they found six spent shell casings for a . 233 rifle: four casings next to the door of the shop and two casings 20 to 40 feet from the shop. The locations of the shell casings were consistent with the description of events provided by Redfern and Covalt. Deputy Wilson testified that Defendant agreed to a recorded interview two days later. Defendant gave Wilson th e following accoun t of events: He had invited Redfern and Covalt to his house after meeting them at a truck stop. At the time, he and his young daughter were the only ones at home. Redf ern brought his daughter to play with Defendant’s daughter. But Redfern de parted without taking her with him. When Defendant discovered that the daughter was still in the house, he was upset that Redfern had left her behind. Covalt had given Defendant his bus iness card, so Defendant called him to have Redfern come back to pick his daughter up. Redfern called two hours later to say he was on his way. The two girls had been in the house. But after Redfern called, Defendant brought them to the shop, wher e they were alone. When Redfern arrived, his daughter got into his car and Defendant sent hi s own daughter to the back of the shop. Defendant was
angry. Redfern started talking “mumbo- jumbo,” and Defendant picked up a rifle he had hidden inside the door of the shop. Aplt. App., Vol. I at 304. Wanting Redfern off his property, Defendant fired several shots from the rifle. The first were fired toward a row4 of trees and the others toward a pasture. After these first rounds were fired, Redfern got into his car and drove off. But Redfern then stopped his car 150 to 200 feet away. Defendant—standing about 30 feet in front of his shop—fired two more rounds past the car into the pasture. Defendant secured the gun in his gun safe. He described the gun as a .233 assault rifle. When repeatedly asked if Redfern th reatened him during this encounter, Defendant said no. When told that Redf ern had accused him of pointing the gun at Redfern’s face, he denied that and said he ne ver aimed at Redfern. Wilson testified that Defendant was not nervous or fri ghtened when discussing the events and that he had no reason to disbelieve Defenda nt’s confession. Defendant also provided a written

statement. Two weeks later, on January 30, Wilson and Sergeant Hollanba ch returned to Defendant’s property to collect the rifle for evidence. Defenda nt led them to the gun safe in his garage and retrieved the rifle, stati ng, “This is what you’re here to get.” Id . at 311 (internal quotation marks omitted). Hollanbach also testified about the January 30 encounter. He added a few details to Wilson’s account. After he and Wilson obtain ed the rifle, he told Defendant that he thought Defendant had a felony conviction. De fendant acknowledged that he did. When Hollanbach asked Defendant how he got the gun, Defendant said that he used his thenwife’s social security number to purchase it. Defendant said in a written statement, “This gun was left behind by my ex-wife and at th e evening in question when all of the trash5 talk became threatening, I gr abbed and shot this gun.” Id. , Vol. II at 362 (internal quotation marks omitted). The next day, Defendant came to Hollanbach’s office and explained in more detail how he obtained the ri fle. He told Hollanbach , “[P]rior to [your] showing up the day before [I] had gotten rid of the knots in [my] belly . . . and since [you] had showed up . . . the knots [have] re turned to [my] belly.” Id. at 366. Agent McFarland testified that he had obtained records confirming that the rifle had been purchased using the na me and social security number of Defendant’s ex-wife. Before the close of the government’s ca se, counsel met with the judge for an inchambers conference to di scuss jury instructions. One related to the fact that Defendant had originally been charged with aggravated assault in state court. (The charge was dismissed after the federal prosecution was initiated.) Defense counsel had told the jury in his opening statement that Defendant woul d testify; and the government, intending to impeach Defendant with evidence of the state charge, so ught an instruction limiting the jury’s use of this evidence. The court agreed to the limiti ng instruction, ruling that the evidence would be admissib le to impeach Defendant if he took the stand. Defendant testified that his story to the officers was fabricated and that an employee named Nico Santos had actually fired the rifle. He explained that Redfern had made a threatening call to him before returnin g to the property. He became concerned for the safety of his daughter, took her to his shop, and brought three employees (including Santos) down from his office to the shop. When Redfern arrive d, he made further threats to Defendant, so Defendant took hi s daughter and went to his office. Santos told him, “I6 will handle this,” and left the shop. Id. at 435 (internal quotation marks omitted). Defendant then heard some screaming, a rapid fire of gun shots, some silence, and then another four or five shots. After the shoo ting, Santos ran back in and told the other employees they had to leave, which they did. Defendant di d not actually see Santos take the gun and did not know where Santos left the gun until he found it in the shop a few days later. When he found it, he asked a friend, Kayce Berg, to put it in the gun safe for him. He said that the gun belonged to hi s ex-wife and that the only time he handled it was when he gave it to Wilson. Defendant also produced a recording of a call he received from Redfern after the shooting. The defe nse did not play it fo r the jury, but the government did. The voice on the recordi ng said: “You better . . . put your guard up now, because you will never . . . ever shoot a gu n next to my head again. . . . You would never . . . do that in front of my daughter ag ain.” Aplt. Supp. App. (Audio Recording, Tr. Ex. 16 B-f). On direct examination Defendant did not deny making the statements to the officers. But he claimed that he had been protecting his employees. He explained, “Well, I don’t know anybody’s situation. I ha ve made boo-boos in my life. I don’t know what anybody else has or has not done and I wasn’t going to point the finger until I could talk with my employees.” Id. , Vol. II at 440. He said that at the time of the interview he thought the situation was not “going to grow into this,” id. at 496, but would be handled locally “between the two parties and the sheriff’s department,” id. at 450. On crossexamination he admitted that he told no one abou t this defense until two weeks before7 trial. Defendant provided no explanation for why it took so long for him to tell this version of the story, especia lly after facing serious charges, except that he had not been able to track down the individuals who he said were actually to blame. Erika Luna, a former employee of De fendant’s, testified that she was at Defendant’s place the night of the incident and that Santos fired the rifle while Defendant hid to protect his daughter. On cross-examination the gover nment asked Ms. Luna when she next heard from Defendant after the incide nt; she responded that she had not spoken to him until he called her four or five weeks before trial. Three other witnesses briefly testified for the defense. Defendant’s father testified that the gun safe where the rifle was stored was his and that he had left it at Defendant’s residence after a recent move. One of Defendant’s friends testified that he had never seen him with a gun in the five years that he had known him. And Berg testified that sometime in January, Defendant had asked him to “take care of [the gun] for him,” so he put it in the gun safe. Id. at 518. II. DISCUSSION A. Absence from Instruction Conference Before the government rested its case in chie f, the district court conducted an inchambers conference “to cover the final eviden tiary instructions, final form of verdict, take any objecti ons and address those.” Id. , Vol. I at 313. Both counsel attended. One instruction proposed by the governmen t concerned Fed. R. Evid. 404(b) , which states that evidence of a person’s prior bad acts may be admissible for a purpose other than “to prove a person’s character in order to show that on a particular occasion the person acted8 in accordance with the ch aracter.” If such evidence is ad mitted, the court must give upon request a “limiting instruction . . . caution[ing] the jury to consider the evidence only for the limited purposes for which it is admitted and not as prob ative of bad character or propensity to commit the charged crime.” United States v. Mares , 441 F.3d 1152, 1157 (10th Cir. 2006). Because of the defense opening statement, the government expected Defendant to testify that he had lied in his police interviews and that another individual actually shot the gun. The government explained that if Defendant so testified, it planned to impeach his credibility with evidence of the aggravated-a ssault charge against him in

state court. Defense counsel unsuccessfully objecte d to the admission of the evidence. The court ruled that it was admissible “as pr obative of credibility,” Aplt. App., Vol. II at 329, and agreed to give the limiting instruction. Defendant did not request to be at th e conference and at no point did defense counsel object to his absence. Defendant now argues that he had a constitutional right to attend. We disagree. 1 The constitutional right of the defendant to be present at tr ial is rooted in both the Confrontation Clause and the Due Process Clause. See United States v. Gagnon , 470 U.S. 522, 526 (1985) (per curiam). The Confrontation Clause assures the defendant of “the privilege to confront one’s accuse rs and cross-examine them face to face.”

1 The parties dispute which sta ndard of review should apply since counsel for Defendant did not object to his absence from the conference. Because we hold that Defendant had no constitutional right to attend the conference , Defendant’s challenge fails under either de novo or plain-error review.9 Snyder v. Massachusetts , 291 U.S. 97, 106 (1934) , overruled in part on other grounds by Malloy v. Hogan , 378 U.S. 1 (1964). For trial procee dings other than the presentation of evidence, the Due Proce ss Clause governs. See Gagnon , 470 U.S. at 526. Under the clause a criminal defendant has the “right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Id. (internal quotation marks omitted). That is, “[t]he presence of a defendant is a condition of due pr ocess to the extent that a fa ir and just he aring would be thwarted by his absence, and to that extent only .” Id . (emphasis added) (internal quotation marks omitted). Three Supreme Court opinions illustrate the scope of due process in this context.
In Snyder the Court held that a defendant’s ex clusion from the jury’s viewing of the crime scene was consistent with due process. See 291 U.S. at 108–22. Although if the defendant were present, he could be sure that the jury had seen the right place and nothing had been altered, “[o] pportunity was ample to learn whatever there was need to know,” id. at 109. He could easily “examine the bailiffs at the trial and learn what they had looked at,” could view the scene at a nother time with counsel, and could inquire “of witnesses in court and of counsel out of court.” Id. at 108. In Gagnon the Court held that the defendant had no constitutional right to be present at an in camera discussion between a juror, the judge, and defense counsel regard ing the juror’s concern that the defendant had been drawing pictures of the jurors. See 470 U.S. at 524, 527. The Court said that the defendant “could have done nothing had [he] been at th e conference, nor would [he]10 have gained anythi ng by attending.” Id . at 527. In Kentucky v. Stincer , 482 U.S. 730, 747 (1987), the Court rejected the argument th at the defendant had a due-process right to be present at a hearing to determine th e competency of tw o child witnesses. The trial judge and counsel had questio ned each child “to determin e if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie.” Id . at 733. The Court expressed the due-proc ess right as follows: “[A] defendant is guaranteed the right to be presen t at any stage of the criminal proceeding that is critical to its outcome if his presence would contribu te to the fairness of the procedure.” Id . at 745. The Court noted that there was no questioning of the girls at the h earing “regarding the substantive testimony that [they] would have give n during trial,” id. , and said that the defendant “ha[d] given no indication that his pr esence at the competen cy hearing in this case would have been useful in ensuring a more reliable dete rmination as to whether the witnesses were comp etent to testify,” id . at 747. In accordance with these principles, we have held “that the exclusion of a defendant . . . from the courtroom during argu ment on a question of law does not violate defendant’s constitutional right to be presen t at every step of the proceedings.” Deschenes v. United States , 224 F.2d 688, 693 (1 0th Cir. 1955). In particular, in this circuit a defendant need not be presen t at a jury-instruction conference. See Larson v. Tansy , 911 F.2d 392, 395 (10th Cir. 1990). “The jury instruction conference traditionally encompasses purely legal issues and . . . it will be a rare case where a defendant can establish that his presence was essential to his opportunity to present his defense.” Id

.11 Defendant argues that he ha d a due-process right to be present at the instruction conference because he would have gained information—th e prosecution’s plan to impeach him by asking about his assault char ge—that would have “‘ contributed to [his] opportunity to defend hims elf against the charges.’” Aplt. Br. at 17 (quoting Stincer , 482 U.S. at 744 n.17). He asserts that “[h] is presence would have allowed him to weigh the government’s trial strategy when maki ng his own decision whether to testify and subject himself to cross-examination, and his presence would have allowed him to consider how the government’s trial strategy might be dealt with in the event he did decide to take the stand.” Aplt. Br. at 19. But due process guarantees his presence only when his presence would be helpful at the proc eeding he seeks to attend—that is, only “if his presence would contribute to the fairness of the procedure.” Stincer , 482 U.S. at 745. The “procedure” whose fairness is at issue is the procedure not attended by the defendant.
In Snyder , Gagnon , and Stincer the Supreme Court’s focus was on whether the defendant could have assisted at the proceeding (the jury view, th e juror questi oning, and the competency hearing) from which the defendant was absent . Due process does not give a defendant a right to be present at a proceeding just so he can gather information for later use. That proposition has been clear since Snyder , where the Supreme Court pointed out that a defendant absent from the jury’s view of a crime scene could view the scene at a different time and could determine what happened during the view by inquiring “of witnesses in court and of counsel out of cour t.” 291 U.S. at 108. Defendant could have learned (and may well have learned) from his counsel all he needed to know about what12 happened at the instruction co nference. If he was not ade quately informed, that is a matter to be dealt with under the constitutio nal guarantee of effective assistance of counsel, not the Due Process Clause. Because the instruction conference was de voted to purely legal issues, and because Defendant makes no argument that his presence would have contributed to the fairness of the conference, Defendant had no due-process right to attend. B. Admission of Testimony on Credibility Defendant challenges the admission of Wilson’s testimony opining on the credibility of Defendant during his interview. Early in his direct examination, Wilson testified to his expertise in interviewing witnesses through trai ning and experience: Q. Do you -- do you engage in specialized training every year? A. Yes. Q. Is that part of your POST -- PO ST training, POST-certified training? A. Yes, it is, a minimum of 20 hours a year. Q. Have you been trained in interview techniques? A. Yes, I have. Q. Have you conducted interviews of potential witnesses to crimes? A. Yes. Q. Have you conducted intervie ws with potential defendants? A. Yes. Q. How many interviews ha ve you conducted, approx imately, over your 22 years with the SO? A. Hundreds. I -- a lot. Q. Do you feel pretty comfortabl e interviewing individuals who are suspects or witnesses to crimes? A. Yes, I do. Aplt. App., Vol. I at 292–93. He also testif ied that he had known Defendant for 10 to 12
years.13 Later Wilson was asked to evaluate Defendant’s statement to him: Q. You testified that you’ve participated in hundreds of in terviews; is that correct? A. Yes. Q. Was there any point during your conve rsation with Mr. Beierle when he appeared nervous to you? A. No. Q. Any point when he appeared frightened? A. No. Q. Was there any indication to you duri ng the time of your interview with him that he was misleading you or being untruthful? A. No. Id. at 307–08 (emphasis added). Defense counsel did not object to this testimony. Defendant now challenges the pros ecutor’s last quoted question. He claims that Wilson’s testimony “violated the well-settled rule that an expert may not opine about another witness’s credibility.” Aplt. Br. at 24. Because Defendant did not contemporaneo usly object to Wilson’s testimony, we review for plain error. See United States v. Hill , 749 F.3d 1250, 1257 (10th Cir. 2014)

. “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id . at 1257–58 (internal quotation marks omitted). We need not decide whether admission of the evidence was error or whether any error was plain. Defendant has the burden to prove that each of the four requirements is satisfied; failure on any one requires affirmance. See United States v. Vazquez , 555 F.3d 923, 930 (10th Cir. 2009). And here Defendant fails on the third requirement. To show that admission of the challenged evidence affected his subs tantial rights, Defendant must establish “a14 reasonable probability that but for the error claimed, the re sult of the proceeding would have been different.” Hill , 749 F.3d at 1263 (int ernal quotation marks omitted). He has not met that burden. The evidence in favor of co nviction was extremely strong. Two officers testified about three interactions with Defendant in which he admitted to possessing the rifle. The jury also received a recording of the interview with Wilson and two written statements by Defendant admitting to firearm possession. True, the mere repetition of Defendant’s account, even to law-enforcement officers, hardly ensures its truthfulness. For instance, one could have serious doubts about his assertion that he never aimed his gu n at Redfern. But his attempt in his trial testimony to discredit his admissions that he had (and used) the gun stretches credulity too far. It is apparent that when he was spea king to the officers, his sole concern was an assault charge, which he thought he had deflec ted (he “had gotten rid of the knots in his belly,” Aplt. App., Vol. II at 366) by asser ting that he never aime d at Redfern or his daughter. He was not fearing a firearms char ge, thinking that th e incident would be resolved “between the two parties and the sheriff’s department,” id. at 450. But the “knots . . . returned” when he realized that the office rs were looking into a felon-inpossession charge, so he had to concoct a different story. Id. at 366. We mention some of the more serious pr oblems with the story Defendant provided at trial. To begin with, Defendant’s descript ion to the officers of where he fired his gun (first a few shots near the shop and then two shots from about 30 feet away) was15 corroborated by the physical ev idence. But if his trial tes timony is correct, he could not have seen from where Santos fired the gun. Also striking is the nonsen sical excuse he gave at trial for giving false statements to the officers. He said that he was trying to protect Santos by taking the blame himself. But what was his motive for doing so? Hi s explanation—“Well, I don’t know anybody’s situation. I have made boo-boos in my life. I don't know what an ybody else has or has not done and I wasn’t going to point the finger until I could talk with my employees,” id. at 440—has no ring of truth, hollow or otherw ise. And how would it help Santos for him to state falsely (1) that he had used his wife ’s social security number to buy the gun for himself, (2) that the visitors had not threaten ed him before the incident, and (3) that he personally put the gun in the safe? And w hy would he delay telling the truth while he tried to track Santos down? Delaying to look for Santos would make more sense if his motive was not to protect Santos but to be su re that Santos could not be found before Defendant falsely put the blame on him. As icing on the cake, we note the tape (offered by Defendant into evidence) of Redfern’s post-incident call ac cusing Defendant of firing at him. Defendant offers no reason for Redfern to accuse him if Sa ntos was the true assailant. Defendant relies on United States v. Hill , 749 F.3d 1250 (10th Cir. 2014), in which we reversed a conviction on plain-error revi ew. But this case bear s little resemblance to Hill . True, our reversal in that case was based on the improper admission of expert testimony by a law-enforcement officer re garding the defendant’s credibility when16 interviewed by the officer. But in this case the evidence of guilt was much stronger; the allegedly improper opinion te stimony was a single, unela borated sentence, not the extensive analysis presented in Hill ; and, unlike in Hill , where the defendant did not testify, the jury had more th an ample opportunity to asse ss Defendant’s credibility during his trial testimony. In our vi ew, Defendant has not shown that his substantial rights were prejudiced by the admission of Wilson’s testimony. C. ACCA Claims The government concedes that the Supreme Court’s recent decision in Johnson v. United States , 135 S. Ct. 2551 (2015), requires setting aside Defendant’s sentence because it was imposed under the unconstitutiona l ACCA residual clause. We agree. Defendant’s sentence must be vacated. III. CONCLUSION We AFFIRM Defendant’s conviction, VACATE Defendant’s sentence, and REMAND to the district court for resentencing.14-8049 – USA v. James Keith Beierle HARTZ, Circuit Judge, concurring: I write separately to explain why I belie ve that the challenged opinion testimony of Officer Wilson was clearly inadmissible. Fi rst, it is settled law in this circuit that a law-enforcement officer cannot provide expe rt testimony on whether a defendant was deceptive during an interview. Second, opinion tes timony must be treated as expert testimony if it is founded on the professiona l training and experience of the witness, regardless of whether the witness is forma lly offered as an expert on the matter. The first proposition was established in United States v. Hill , 749 F.3d 1250 (10th Cir. 2014), where we stated the general rule that expert testimony ab out the credibility of a witness is inadmissible. As we explaine d, “Such testimony: (1) usurps a critical function of the jury; (2) is not helpful to the jury , which can make its own determination of credibility; and (3) when provided by impr essively qualified experts on the credibility of other witnesses is prejudicial and unduly influences the jury.” Id . at 1258 (internal quotation marks omitted). In Hill an officer testified about the defendant’s credibility in an interview with police. See id. at 1263. The interrogating officer testified that he had been trained to identify “decep tion in statements and truths in statements,” and had conducted over a thousand interv iews as an FBI agent. Id . at 1255 (internal quotation marks omitted). He was asked, “based on hi s training and experience,” what he thought of the defendant’s truthfulness in the inte rrogation, and the officer provided detailed explanations about the defendant’s behavior th at made the officer think he was lying. Id

. at 1256 (brackets and internal quotation marks omitted). Although defense counsel did-2- not object at trial, we held that allowi ng this line of inquiry was plain error. See id . at 1263. We noted that other circuits are in accord: it is impermissible for an expert to opine on the credibility of an other witness’s statements. See id. at 1260 (collecting cases). 1 The second proposition follows from the Federal Rules of Evidence, as well as precedent. The rules do “not dis tinguish between expert and lay witnesses , but rather between expert and lay testimony .” Fed. R. Evid. 701 advisory committee’s notes, 2000 amendments. The provisions governing expe rt testimony cannot be evaded simply by declining to offer the w itness as an expert. See United States v. Charley , 189 F.3d 1251, 1257, 1260, 1266–67 (10th Cir. 1999) (testim ony of Dr. Ornelas, who was not offered as an expert, was inadmissible expert testimony to the extent it vouched for truthfulness of statement by child victim). A lay witness is not permitted to give expe rt testimony. Fed. R. Evid. 701 sets forth the proper scope of lay opinion testimony: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on th e witness’s perception; (b) helpful to clearly understand ing the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (emphasis added). Thus, an opinion is not pr operly considered lay opinion if it is based on “specialized knowledge” and therefore covered by the rule on expert opinion testimony, Fed. R. Evid. 7 02. In particular, “‘Know ledge derived from previous

1 Hill recognized that psychiatric testimony may so metimes be admissible on the issue of credibility. See 749 F.3d at 1262. But that ex ception has no application here.-3- professional experience falls squarely within the scope of Rule 702 and thus by definition outside of Rule 701.’” James River Ins. Co. v. Rapid Funding, LLC , 658 F.3d 1207, 1215 (10th Cir. 2011) (brackets omitted) (quoting United States v. Smith , 640 F.3d 358, 365 (D.C. Cir. 2011) (FBI agent’s testimony interpreting slang used in recorded conversations should not have been admitte d as lay testimony)). A law-en forcement officer’s opinion based on police training and the experience of conducting hundreds of interviews easily fits that description. The inescapable conclusion is that an officer’s opinion regarding a witness’s deceptiveness during an interview is inadmissible if the opinion is based on the officer’s professional training and experience. Such an opinion is not admissible as lay testimony under Rule 701, and it is ba rred as expert testimony by Hill

. The government contends that Wilson’s statement that Defendant was not being misleading or untruthful during his intervie w was not expert test imony because Wilson’s opinion was based on his persona l knowledge of Defendant rath er than his training and experience. There is some truth to that contention. The prosecutor elicited at trial that Wilson and Defendant had known each other for years. But he also elicited that Wilson had extensive training and experience in interv iewing prospective defendants. And when the prosecutor asked Wilson, “Was there any indication to you during the time of your interview with him that he wa s misleading you or be ing untruthful,” Aplt. App., Vol. I. at 308, he had reminded the jury only seco nds earlier that Wilson had “participated in hundreds of interviews”; but the prosecutor had not reminded the jury that Wilson had known Defendant for 10 to 12 years. (The testimony that Wilson had known Defendant-4- for 10 to12 years came 14 pages earlier in th e transcript than th e “untruthfulness” question.) Also, when emphasizing in fina l argument the testimony by Wilson that Defendant had not seemed deceitful, the prosecutor gave at least equal billing to Wilson’s training and experience in conducting interv iews as he did to Wilson’s having known Defendant for 10 to12 years. The rele vant part of the closing was: Sergeant Hollanbach and Deputy W ilson, remember when you think about this, too, 47 years of combined law enfo rcement experience, 20 hours a year of continuing training, hundred s and hundreds and hundreds of interviews of witnesses and defendants and they both testified, they said, “Look, when I talked to him”—and remember, Kurt Wilson knows the defendant. He knows him from, a ccording to the defendant, personal contacts and then later the defendant ad mitted also other kinds of contacts. But he knows the defendant pers onally. He’s known him for 10 years, 10 to 12 years he said. But all of these interviews they have done, hundreds and hundreds and hundreds and nothing that he told them on the—on the 15th or on the 30th or on the 31st ever indicated to them in any way that he was being dece itful. Nothing. So that’s important to think about when we go through these. Aplt. App., Vol. III at 553–54 (emphasis added). I think it telling that the prosecutor (incorrectly) indicated that Ho llanbach had also testified that Defendant did not appear to be deceitful. Hollanbach’s opinion could onl y be based on his trai ning and experience because he had not known Defend ant personally. Yet the pros ecutor wanted the jury to rely on that opinion. 2

2 Even if Wilson’s testimony had been base d solely on his personal knowledge of Defendant, it would not have pa ssed muster. Lay witness te stimony on the credibility of a witness’s statement is inadmi ssible. Perhaps it is not as impressive as expert opinion, but it still “usurps a critical function of the jury [and] is not helpful to the jury, which can make its own determina tion of credibility.” Hill , 749 F.3d at 1258 (i nternal quotation marks omitted); see United States v. Forrester , 60 F.3d 52, 63 (2d Cir. 1995) (officer testimony on credibility was no t permitted under Fed. R. Evid. 701, which governs-5- I also cannot accept the government’s argum ent that defense counsel “opened the door” to testimony regarding the veracity of the confession when he told the jury during opening statement that Defendant would take the stand and re pudiate his confession. The argument misconceives the open-the-door do ctrine. Counsel co uld open the door by saying something that made relevant what would otherwise be irrelevant. The government might then be permitted to resp ond on that otherwise-irrelevant subject. See, e.g., United States v. Tenorio , No. 15-2037, 2015 WL 94668 67, at *4 (10th Cir. Dec. 29, 2015) (defendant opened door to evid ence that he took polygraph test); United States v. Segal , 852 F.2d 1152, 1155 –56 (9th Cir. 1988) (in prosecution for failing to file currencytransaction reports, government could put on ev idence of defendant’s cocaine sales after subject was brought up in defendant’s opening statement). Or counsel could open the door by referring to evidence that is relevant but would otherwise be inadmissible, such as a hearsay statement. The government might then be permitted to respond to that hearsay statement as if it were admissible ev idence, such as by im peaching the declarant or offering other hearsay necessary to pu t in context the hearsay mentioned in the opening statement. See United States v. Lopez-Medina , 596 F.3d 716, 731–36 (10th Cir.

opinion testimony by lay witnesses, because “t he credibility of witnesses is exclusively for the determination by the ju ry, and witnesses may not opine as to the credibility of the testimony of other witnesses at the trial” (brackets and internal quotation marks omitted)); cf. Charley , 189 F.3d at 1267 n.21 (noting th at some courts have rejected testimony vouching for the credibility of a witness under Fed. R. Evid. 608(a)(1) (limiting opinion evidence on ch aracter for truthfulness) or 4 03 (grounds for exclusion of relevant evidence)). A lay witness could testify about whether another person was nervous and the like, but the government has not cited any case au thorizing lay testimony that a person was telling the truth when making a statement.-6- 2010) (admission of hearsay upheld under ru le of completeness after defense counsel elicited inadmissible evidence). In this case, however, defense counsel’s opening statement did not make relevant anything that was not already relevant. Even without that statemen t, evidence regarding the truthfulness of Defendant’s confession woul d be relevant. Nor did defense counsel’s statement refer to any relevant evidence that would be inadmissible. For example, if counsel had asserted in his op ening statement that the officers did not believe Defendant when he confessed (evidence that should be barred because it would be a witness’s opinion of the credibility of a statement by so meone else), the door might be opened to testimony by the officers about whether they believed Defendant when he confessed. In short, nothing in defense counsel’s opening statement changed the rules of the game. 3 The cases cited by the government are inappos ite. It has pointed to no precedent that permits opinion testimony on the credibility of a witness’s statemen t merely because the witness disavows or departs from the prior statement. For these reasons I believe that Defenda nt carried his burden of showing that admission of Wilson’s opinion testimony wa s error and the error was plain. But affirmance is nevertheless required beca use he failed to show prejudice.

3 To be sure, when a witness’s character for truthfulness has been attacked (as might be done in an opening statement, see United States v. Santiago , 46 F.3d 885, 891–92 (9th Cir. 1995)), the opposing party can put on eviden ce of the witness’s character for truthfulness. See Fed. R. Evid. 608(a). But that rule is not involved here; when defense counsel said that Defendant’s confession wa s false, he was not attacking Defendant’s character for truthfulness. And when the government questioned Wilson, it was not to establish that Defendant had a truthful charac ter. To the contrary, the defense wanted the jury to believe Defendant’s testimony and the government had the opposite aim.