NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

NELSON RAY MCKEE, 

Defendant-Appellant.

No. 17-10244 

D.C. No. 

3:15-cr-00007-RCJ-VPC-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted October 16, 2018

San Francisco, California

Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and LASNIK,**

District Judge.

Nelson Ray McKee appeals his jury conviction for voluntary manslaughter 

within Indian Country in the stabbing of his wife, Cheryl Jackson McKee 

(“Jackson”), on December 31, 2014. At the outset, the district court denied in part

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.

FILED

NOV 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-10244 

McKee’s motion to suppress certain evidence as having been obtained in violation 

of his Fourth Amendment rights. In the course of the trial, the district court also 

excluded portions of the testimony of a witness, Lekeisha Crutcher, and McKee’s 

expert, Lawrence Lee Renner. McKee received a 120-month sentence, one year 

above the range indicated in the Guidelines issued by the United States Sentencing 

Commission. On appeal, he challenges these three rulings and the upward variance 

in his sentence. We have jurisdiction under 18 U.S.C § 1153, and we affirm.

1. Denial of Motion to Suppress Evidence

The government has the burden of proving that consent was given to a 

warrantless search. United States v. Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013) 

(citing United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993)). “On appeal, 

evidence regarding the question of consent must be viewed in the light most 

favorable to the fact-finder’s decision.” United States v. Patayan Soriano, 361 F.3d 

494, 501 (9th Cir. 2004) (quoting United States v. Kaplan, 895 F.2d 618, 622 (9th 

Cir.1990)).

We first review the district court’s underlying factual findings for clear 

error. United States v. Lara, 815 F.3d 605, 608–09 (9th Cir. 2016) (citing United 

States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009)). The district court concluded

that McKee “likely orally consented” to the entry. This finding is not clearly 

erroneous.
3 17-10244 

We review de novo the denial of a motion to suppress evidence. Lara, 815 

F.3d at 608–09 (citing Mayer, 560 F.3d at 956). Consent to a warrantless search 

and seizure must be “unequivocal and specific and freely and intelligently given. 

There must be convincing evidence that [a] defendant has waived his rights. There 

must be clear and positive testimony.” United States v. Shaibu, 920 F.2d 1423,

1426 (9th Cir. 1990) (internal quotation marks omitted) (quoting United States v. 

Page, 302 F.2d 81, 83–84 (9th Cir. 1962)). The finding that McKee orally 

consented to the entry meets this threshold. The court therefore did not err in

denying the motion.

2. Exclusion of Present Sense Impression Testimony

At trial, Lekeisha Crutcher (“Lekeisha”) was prevented from testifying that 

she heard Brittany Abel say, “I see a van leaving up Hazard Road.” The parties 

agree that the district court erred in excluding this testimony. We therefore review 

for harmless error. United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997)

(en banc) (citing United States v. Rahm, 993 F.2d 1405, 1414 (9th Cir. 1993)). We

reverse unless “it is more probable than not that the error did not materially affect 

the verdict.” Id. (citing United States v. Crosby, 75 F.3d 1343, 1349 (9th 

Cir.1996)). We affirm, because the excluded testimony came in later through 

Lekeisha’s husband, Chad Crutcher. He testified that he heard Abel say, “Well, 

who’s that? Who’s that leaving . . . down the road?” He also testified that he saw 
4 17-10244 

the van himself. 

3. Exclusion of Expert Testimony

We review the admission or exclusion of expert testimony for an abuse of 

discretion. Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010) (citing United 

States v. W.R. Grace, 504 F.3d 745, 759 (9th Cir. 2007)).

First, Renner was asked to analyze Jackson’s injuries, and the use of a knife 

to inflict them, as they pertained to the likelihood of a suicide versus a homicide. 

The court interrupted, stating that the testimony had ventured into a manner-ofdeath determination. This exclusion was not an abuse of discretion. On voir dire, 

Renner testified that he had never acted as a forensic pathologist or a coroner and 

had no experience with manner-of-death determinations. He was accepted as an 

expert only for crime scene interpretation and reconstruction and blood pattern 

identification.

Second, Renner was asked whether “the location of the [two] knives at the 

same spot as the notes” was significant. He responded, “it’s less likely that you had 

two individuals who would assault somebody and then lay the knives both down 

close together on a table. It would be more consistent with a suicide-type 

situation.” This is the answer that the district court struck, stating that an 

appropriate foundation as to the location of the knives had not yet been established, 

that Renner was not offered as an expert on manner of death determinations, and 
5 17-10244 

that Renner was being impermissibly asked whether the scene was more consistent 

with a suicide versus a homicide. The district court then clarified that Renner could 

be directed to testify regarding where the knives were found, but that he could not 

be asked whether that made a suicide less likely.

This was an error. Expert opinions on ultimate issues are generally 

permissible. Fed. R. Evid. 704(a); Morales, 108 F.3d at 1035. And the location of 

the two bloody knives falls within the scope of Renner’s expertise in crime scene 

reconstruction.

The error, however, was harmless. The defense’s alternative theory 

concerning multiple unknown assailants was never substantially advanced. 

Whether there was one assailant or two does not necessarily affect the assessment 

of McKee’s guilt. Moreover, the extensive remainder of Renner’s testimony on the 

likelihood of a suicide was admitted. 

4. Upward Variance in Sentence

We review the imposition of a sentence for an abuse of discretion in two 

steps. First, we determine whether the district court committed procedural error. 

Second, we consider the substantive reasonableness of the sentence. United States 

v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (citing Gall v. United States, 552 U.S. 

38, 51 (2007). There was no procedural error. McKee’s Fifth Amendment rights 

were not violated. The district court was entitled to take the lack of remorse 
6 17-10244 

evidenced by McKee’s statement into consideration in imposing the sentence. 

United States v. Hull, 792 F.2d 941, 943 (9th Cir. 1986) (per curiam). The sentence 

was not imposed to promote McKee’s rehabilitation. Tapia v. United States, 564 

U.S. 319, 334 (2011). In the totality of the circumstances, the sentence was

substantively reasonable. Carty, 520 F.3d at 993 (citing Gall, 552 U.S. at 51). 

AFFIRMED.