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 DISTRICT OF WYOMING 

(D.C. No. 2:13-CR-00098-NDF-1)

 

Robert T. Fishman, Of Counsel, Ridley, McGreevy & Winocur, PC, Denver, Colorado, 

for Defendant - Appellant. 

Thomas Szott, Assistant United States Attorney, (Christopher A. Crofts, United States 

Attorney, and Stuart S. Healy, III, Assistant 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 Beierle of being a felon in possession of a 

firearm. See 18 U.S.C. § 922(g)(1). He was sentenced to 15 years’ imprisonment after 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 19, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

the court found him eligible for a sentence enhancement under 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 instructions; (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 instruction conference did 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 prejudice in light of the overwhelming evidence of guilt. And 

Defendant’s sentence must be set aside because 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 district court for resentencing. 

I. THE TRIAL 

The trial was conducted in February 2014. The prosecution called four witnesses: 

Deputy Ryan Martinez of the Laramie County Sheriff’s Office (LCSO), LCSO Deputy 

Kurt Wilson, LCSO Sergeant Mark Hollanbach, and Special Agent Steve McFarland of 

the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Deputy Martinez 

testified that on the night of January 13, 2013, he and another deputy went to Defendant’s 
3 

house to interview him after receiving a disturbance call from Richard Redfern and Chris 

Covalt. When Defendant did not answer the door, the deputies went to see if he was in 

the shop building on the property. 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 the following account 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. Redfern brought his daughter to play with 

Defendant’s daughter. But Redfern departed 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 business 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, where they were alone. When Redfern arrived, his daughter got into 

his car and Defendant sent his 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 row 
4 

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 threatened him during this encounter, 

Defendant said no. When told that Redfern had accused him of pointing the gun at 

Redfern’s face, he denied that and said he never aimed at Redfern. Wilson testified that 

Defendant was not nervous or frightened when discussing the events and that he had no 

reason to disbelieve Defendant’s confession. Defendant also provided a written 

statement. 

 Two weeks later, on January 30, Wilson and Sergeant Hollanbach returned to 

Defendant’s property to collect the rifle for evidence. Defendant led them to the gun safe 

in his garage and retrieved the rifle, stating, “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 obtained the rifle, he told Defendant that he 

thought Defendant had a felony conviction. Defendant 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 the evening in question when all of the trash 
5 

talk became threatening, I grabbed 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 rifle. 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] returned to [my] belly.” Id. at 366. 

 Agent McFarland testified that he had obtained records confirming that the rifle 

had been purchased using the name and social security number of Defendant’s ex-wife. 

 Before the close of the government’s case, counsel met with the judge for an inchambers conference to discuss 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 would testify; and the government, intending to 

impeach Defendant with evidence of the state charge, sought an instruction limiting the 

jury’s use of this evidence. The court agreed to the limiting instruction, ruling that the 

evidence would be admissible 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 returning 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 arrived, he made further threats 

to Defendant, so Defendant took his daughter and went to his office. Santos told him, “I 
6 

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 shooting, Santos ran back in and told the other 

employees they had to leave, which they did. Defendant did 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 his 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 defense did not play it for the jury, but the 

government did. The voice on the recording said: “You better . . . put your guard up 

now, because you will never . . . ever shoot a gun next to my head again. . . . You would 

never . . . do that in front of my daughter again.” 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 have 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 about this defense until two weeks before 
7 

trial. Defendant provided no explanation for why it took so long for him to tell this 

version of the story, especially 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 Defendant’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 government asked Ms. Luna when 

she next heard from Defendant after the incident; 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 chief, the district court conducted an inchambers conference “to cover the final evidentiary instructions, final form of verdict, 

take any objections and address those.” Id., Vol. I at 313. Both counsel attended. One 

instruction proposed by the government 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 acted 
8 

in accordance with the character.” If such evidence is admitted, 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 probative 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-assault charge against him in 

state court. Defense counsel unsuccessfully objected to the admission of the evidence. 

The court ruled that it was admissible “as probative of credibility,” Aplt. App., Vol. II at 

329, and agreed to give the limiting instruction. 

 Defendant did not request to be at the 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 trial 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 accusers and cross-examine them face to face.” 

 

1

 The parties dispute which standard 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 proceedings other than the presentation of 

evidence, the Due Process 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 process to the extent that a fair and just hearing 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 exclusion 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 another 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 regarding 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 the conference, nor would [he] 
10 

have gained anything by attending.” Id. at 527. In Kentucky v. Stincer, 482 U.S. 730, 

747 (1987), the Court rejected the argument that the defendant had a due-process right to 

be present at a hearing to determine the competency of two child witnesses. The trial 

judge and counsel had questioned each child “to determine 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-process right as follows: “[A] defendant is 

guaranteed the right to be present at any stage of the criminal proceeding that is critical to 

its outcome if his presence would contribute to the fairness of the procedure.” Id. at 745. 

The Court noted that there was no questioning of the girls at the hearing “regarding the 

substantive testimony that [they] would have given during trial,” id., and said that the 

defendant “ha[d] given no indication that his presence at the competency hearing in this 

case would have been useful in ensuring a more reliable determination as to whether the 

witnesses were competent to testify,” id. at 747. 

 In accordance with these principles, we have held “that the exclusion of a 

defendant . . . from the courtroom during argument on a question of law does not violate 

defendant’s constitutional right to be present at every step of the proceedings.” 

Deschenes v. United States, 224 F.2d 688, 693 (10th Cir. 1955). In particular, in this 

circuit a defendant need not be present 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 had a due-process right to be present at the instruction 

conference because he would have gained information—the prosecution’s plan to 

impeach him by asking about his assault charge—that would have “‘contributed to [his] 

opportunity to defend himself 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 making 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 proceeding 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, the juror questioning, 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 court.” 291 U.S. at 108. Defendant could have 

learned (and may well have learned) from his counsel all he needed to know about what 
12 

happened at the instruction conference. If he was not adequately informed, that is a 

matter to be dealt with under the constitutional guarantee of effective assistance of 

counsel, not the Due Process Clause. 

 Because the instruction conference was devoted 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 training and experience: 

Q. Do you -- do you engage in specialized training every year? 

A. Yes. 

Q. Is that part of your POST -- POST 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 interviews with potential defendants? 

A. Yes. 

Q. How many interviews have you conducted, approximately, over your 22 

years with the SO? 

A. Hundreds. I -- a lot. 

Q. Do you feel pretty comfortable interviewing individuals who are 

suspects or witnesses to crimes? 

A. Yes, I do. 

Aplt. App., Vol. I at 292–93. He also testified 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 interviews; is that 

correct? 

A. Yes. 

Q. Was there any point during your conversation 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 during 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 prosecutor’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 contemporaneously 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 substantial rights, Defendant must establish “a 
14 

reasonable probability that but for the error claimed, the result of the proceeding would 

have been different.” Hill, 749 F.3d at 1263 (internal quotation marks omitted). He has 

not met that burden. 

 The evidence in favor of conviction 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 gun 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 speaking to the officers, his sole concern was an 

assault charge, which he thought he had deflected (he “had gotten rid of the knots in his 

belly,” Aplt. App., Vol. II at 366) by asserting that he never aimed at Redfern or his 

daughter. He was not fearing a firearms charge, thinking that the 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 officers 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 problems with the story Defendant provided 

at trial. To begin with, Defendant’s description 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) was 
15 

corroborated by the physical evidence. But if his trial testimony is correct, he could not 

have seen from where Santos fired the gun. 

 Also striking is the nonsensical 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? His explanation—“Well, I don’t know anybody’s 

situation. I have 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. 

at 440—has no ring of truth, hollow or otherwise. 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 threatened him before the incident, and (3) that he 

personally put the gun in the safe? And why 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 sure 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 accusing Defendant of firing at him. Defendant offers no 

reason for Redfern to accuse him if Santos 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 review. But this case bears little resemblance to 

Hill. True, our reversal in that case was based on the improper admission of expert 

testimony by a law-enforcement officer regarding the defendant’s credibility when 
16 

interviewed by the officer. But in this case the evidence of guilt was much stronger; the 

allegedly improper opinion testimony was a single, unelaborated sentence, not the 

extensive analysis presented in Hill; and, unlike in Hill, where the defendant did not 

testify, the jury had more than ample opportunity to assess Defendant’s credibility during 

his trial testimony. In our view, 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 unconstitutional 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 believe that the challenged opinion testimony 

of Officer Wilson was clearly inadmissible. First, it is settled law in this circuit that a 

law-enforcement officer cannot provide expert testimony on whether a defendant was 

deceptive during an interview. Second, opinion testimony must be treated as expert 

testimony if it is founded on the professional training and experience of the witness, 

regardless of whether the witness is formally 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 about the credibility of 

a witness is inadmissible. As we explained, “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 impressively 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 “deception in statements and truths in statements,” and had 

conducted over a thousand interviews as an FBI agent. Id. at 1255 (internal quotation 

marks omitted). He was asked, “based on his training and experience,” what he thought 

of the defendant’s truthfulness in the interrogation, and the officer provided detailed 

explanations about the defendant’s behavior that 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 allowing 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 another 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 distinguish 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 expert testimony cannot be evaded simply by 

declining to offer the witness as an expert. See United States v. Charley, 189 F.3d 1251, 

1257, 1260, 1266–67 (10th Cir. 1999) (testimony 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 expert 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 the witness’s perception; 

 (b) helpful to clearly understanding 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 properly considered lay opinion if it is based 

on “specialized knowledge” and therefore covered by the rule on expert opinion 

testimony, Fed. R. Evid. 702. In particular, “‘Knowledge derived from previous 

 

1 Hill recognized that psychiatric testimony may sometimes be admissible on the issue of 

credibility. See 749 F.3d at 1262. But that exception 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 admitted as lay testimony)). A law-enforcement 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 barred as expert testimony by Hill. 

 The government contends that Wilson’s statement that Defendant was not being 

misleading or untruthful during his interview was not expert testimony because Wilson’s 

opinion was based on his personal knowledge of Defendant rather 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 interviewing prospective defendants. And when 

the prosecutor asked Wilson, “Was there any indication to you during the time of your 

interview with him that he was misleading you or being untruthful,” Aplt. App., Vol. I. 

at 308, he had reminded the jury only seconds 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 the transcript than the “untruthfulness” 

question.) Also, when emphasizing in final 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 interviews as he did to Wilson’s having known 

Defendant for 10 to12 years. The relevant part of the closing was: 

 Sergeant Hollanbach and Deputy Wilson, remember when you think 

about this, too, 47 years of combined law enforcement experience, 20 hours 

a year of continuing training, hundreds 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, according to the defendant, personal 

contacts and then later the defendant admitted also other kinds of contacts. 

 But he knows the defendant personally. 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 deceitful. 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 Hollanbach had also testified that Defendant did not appear to 

be deceitful. Hollanbach’s opinion could only be based on his training and experience 

because he had not known Defendant personally. Yet the prosecutor wanted the jury to 

rely on that opinion.2

 

 

2 Even if Wilson’s testimony had been based solely on his personal knowledge of 

Defendant, it would not have passed muster. Lay witness testimony on the credibility of 

a witness’s statement is inadmissible. 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 determination of credibility.” Hill, 749 F.3d at 1258 (internal quotation 

marks omitted); see United States v. Forrester, 60 F.3d 52, 63 (2d Cir. 1995) (officer 

testimony on credibility was not permitted under Fed. R. Evid. 701, which governs 
-5- 

I also cannot accept the government’s argument 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 repudiate his confession. The 

argument misconceives the open-the-door doctrine. Counsel could open the door by 

saying something that made relevant what would otherwise be irrelevant. The 

government might then be permitted to respond on that otherwise-irrelevant subject. See, 

e.g., United States v. Tenorio, No. 15-2037, 2015 WL 9466867, at *4 (10th Cir. Dec. 29, 

2015) (defendant opened door to evidence 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 evidence 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 evidence, such as by impeaching the declarant 

or offering other hearsay necessary to put 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 “the credibility of witnesses is exclusively 

for the determination by the jury, 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 that some courts have rejected 

testimony vouching for the credibility of a witness under Fed. R. Evid. 608(a)(1) 

(limiting opinion evidence on character for truthfulness) or 403 (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 authorizing lay testimony 

that a person was telling the truth when making a statement. 
-6- 

2010) (admission of hearsay upheld under rule 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 statement, evidence regarding 

the truthfulness of Defendant’s confession would 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 opening 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 someone 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 inapposite. It has pointed to no precedent that 

permits opinion testimony on the credibility of a witness’s statement merely because the 

witness disavows or departs from the prior statement. 

For these reasons I believe that Defendant carried his burden of showing that 

admission of Wilson’s opinion testimony was error and the error was plain. But 

affirmance is nevertheless required because 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 evidence 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 was 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 character. To the contrary, the defense wanted the 

jury to believe Defendant’s testimony and the government had the opposite aim.