FILED

United States Court of Appeals

Tenth Circuit

September 9, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-2194

ALDEN BENALLY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:CR–05-1854-WJ)

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, New Mexico, for

Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States

Attorney, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, LUCERO, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Alden Benally was convicted of abusive sexual contact with a child in

violation of 18 U.S.C. §§ 2244(a), (c), and 18 U.S.C. § 2253, and was sentenced to 240

months’ imprisonment. On appeal, he argues that the district court abused its discretion
2

by excluding the testimony of an expert witness on false confessions who would have

provided support for his claim that his confession to FBI agents was untrue. He also

contends his sentencing did not satisfy the procedural requirements of federal sentencing

law. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 3742, and

we affirm. 

I.

Several months after meeting, Colleen Ann Yazzie began dating and living with

Mr. Benally in Casamero Lake, New Mexico, within the borders of the Navajo nation. 

Mr. Benally is a member of the Navajo nation, which is a tribe recognized by the federal

government.

After living with Ms. Yazzie for several years, Mr. Benally moved to Phoenix,

Arizona in order to receive training as a radiological technician. Shortly after Mr.

Benally left, Ms. Yazzie’s niece, N.T., attended a presentation with her sixth grade class

on sexual abuse. As part of the presentation, the students received a questionnaire related

to sexual abuse and N.T.’s responses indicated she had been sexually abused. When

subsequently questioned about her responses, N.T. implicated Mr. Benally as the

perpetrator. The teacher then spoke with Ms. Yazzie’s younger sister, W.T., who also

indicated she had been sexually abused by Mr. Benally. 

Tribal officials referred the allegations to the FBI. Two agents traveled to Phoenix

and interviewed Mr. Benally for approximately an hour and a half in a patient

examination room at Mr. Benally’s workplace. The agents informed Mr. Benally they
3

were only there to investigate allegations he had sexually abused N.T. and W.T and that

he was not under arrest. Mr. Benally agreed to speak to the agents. Mr. Benally initially

denied touching either girl inappropriately, but confessed to the allegations later in the

interview. At the conclusion of the meeting, he provided the agents with a written

confession. 

Mr. Benally disavowed his confession at trial, and claimed it was prompted by

coercive tactics used by the FBI agents. He testified that the agents repeatedly insisted he

was lying when he denied the charges and “would not take no for an answer.” ROA, Vol.

XXIII, Trial Tr. at 413-14. He also reported that one of the agents engaged in aggressive,

leading questioning, and that at one point, the agent threatened to remove him from his

workplace in handcuffs unless he cooperated. He indicated that the agents made him feel

as if he could not leave the room unless he cooperated and confessed. One of the agents

testified that they never threatened Mr. Benally, and did not make any promises to him. 

The agent claimed the only guidance he provided Mr. Benally in drafting the confession

consisted of basic directions such as “put in there what happened” and “if you want, you

can tell them you want to apologize.” ROA, Vol. XXII, Trial Tr. at 68. 

Prior to trial, Mr. Benally notified the government he planned to call Dr. Deborah

Davis, a professor of psychology at the University of Nevada at Reno, as an expert

witness on false confessions. Mr. Benally offered her as “an expert in the field of social

psychology” and “the subjects of confession, interrogation techniques . . .[,] and the

ability of those techniques to cause people to confess.” ROA, Vol. I, Def.’s Br. Mot. in
4

Limine at 5. The government requested a hearing to determine whether she was qualified

to testify as an expert under Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1996). Mr. Benally offered Dr. Davis’s testimony

on two subjects: (1) whether false confessions occur; and (2) why people confess falsely. 

Dr. Davis had never examined Mr. Benally, and would not offer an opinion as to whether

he confessed falsely.

Dr. Davis did not appear at the Daubert hearing. Instead, the court relied on

documentary evidence related to Dr. Davis, and accepted as a proffer a transcript of her

testimony in a similar case before a different judge on the same court. Included in the

proffer was a PowerPoint presentation Dr. Davis used in the other case. After reviewing

the transcript and the PowerPoint presentation, the district court ruled that Dr. Davis’s

testimony was inadmissible, concluding that it did not meet the standards for relevance or

reliability required by Daubert. The case proceeded to trial, but ended in a mistrial when

the jury failed to reach a unanimous verdict. A second trial resulted in Mr. Benally’s

conviction. 

The presentence investigation report (PSR) that was prepared in Mr. Benally’s

case calculated an offense level of 44 and a criminal history of I, which would carry a

sentence of life imprisonment under the Guidelines. In this case, however, Mr. Benally’s

offense of conviction carries a statutory maximum term of 240 months. See 18 U.S.C. §§

2244(a)(c), 2246(3). Pursuant to U.S.S.G. § 5G1.1(a), if a statutory maximum sentence is

less than the minimum of the applicable Guideline range, the statutory maximum
5

sentence shall constitute the recommended sentence under the Guidelines. As a result,

Mr. Benally’s actual Guideline sentence was 20 years of imprisonment, which the district

court ultimately imposed after finding that term of imprisonment “reasonable.” 

II.

Mr. Benally argues that the district court erred by excluding Dr. Davis’s testimony

on false confessions. He stresses that Dr. Davis would only have testified to the

frequency of false confessions and the interrogation techniques known to cause them, and

would not have offered an opinion as to whether Mr. Benally confessed falsely. He

contends that the limited purpose of this testimony was to overcome the perception that

sane people either do not confess falsely, or do so only rarely. He suggests that by

presenting general testimony from Dr. Davis regarding the phenomenon of false

confessions in tandem with his specific testimony regarding the conditions of his

interrogation, his explanation for why he confessed falsely would be placed into a

broader, more believable context. 

We review de novo whether the district court correctly applied Daubert. We

review the district court’s ultimate decision to admit or deny the testimony for an abuse of

discretion. Burlington Northern & Santa Fe Ry. v. Grant, 505 F.3d 1013, 1030 (10th Cir.

2007). Mr. Benally does not argue that the district court failed to employ the correct legal

standard, which limits this court’s review to the question of whether the trial court abused

its discretion in refusing to admit Dr. Davis’s testimony. We will therefore only reverse

if we conclude that the district court’s decision was “arbitrary, capricious, whimsical or
6

manifestly unreasonable or when we are convinced that the district court made a clear

error of judgment or exceeded the bounds of permissible choice in the circumstances.” 

Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1079 (10th Cir. 2006). 

The admissibility of expert testimony is governed by Rule 702 of the Federal

Rules of Evidence. When “[f]aced with a proffer of expert scientific testimony . . . the

trial judge must determine at the outset . . . whether the expert is proposing to testify to

(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a

fact in issue.” Daubert, 509 U.S. at 592 . “In performing this gatekeeper role, the judge

must assess the reasoning and methodology underlying the expert’s opinion, then

determine whether it is scientifically valid and applicable to a particular set of facts.” 

Burlington Northern, 505 F.3d at 1030. A trial judge conducting review under Daubert

must seek to “ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.” Daubert, 509 U.S. at 589. This principle “applies not only to

testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and

‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141

(1999) (citation omitted). Scientifically reliable evidence and testimony may be excluded

where it is not directly relevant to the particular matter disputed at trial, and would not

therefore “assist the trier of fact as required by Rule 702.” United States v. Charley, 189

F.3d 1251, 1267 (10th Cir. 1999). 

The district court did not abuse its discretion by excluding Dr. Davis’s testimony.

This conclusion is well supported by our opinion in United States v. Adams, 271 F.3d
7

1236 (10th Cir. 2001). In Adams, we affirmed a district court’s exclusion of a

psychologist’s expert testimony regarding the credibility of incriminating statements

made by a defendant to police officers. Id. at 1244. The defendant in Adams argued that

“the proffered testimony . . . showed Adams’ neurocognitive impairment and dependent

personality structure[,] and supports the possibility the statements he gave to the police

were false.” Id. (quotation omitted). While recognizing that a district court may not

categorically exclude all expert testimony of this variety, we noted that “the credibility of

witnesses is generally not an appropriate subject for expert testimony.” Id. at 1244-45

(quotation omitted). We went on to identify three concerns associated with this type of

testimony: 

First, expert testimony which does nothing but vouch for the credibility of

another witness encroaches upon the jury’s vital and exclusive function to

make credibility determinations, and therefore does not assist the trier of

fact as required by Rule 702. Also, a proposed expert’s opinion that a

witness is lying or telling the truth might be inadmissible pursuant to Rule

702 because the opinion exceeds the scope of the expert’s specialized

knowledge and therefore merely informs the jury that it should reach a

particular outcome. Yet another rationale for exclusion is that the testimony

of impressively qualified experts on the credibility of other witnesses is

prejudicial, unduly influences the jury, and should be excluded under Rule

403.

Id. at 1245 (quotations omitted). 

Mr. Benally seeks to distinguish his case from Adams based on the fact that unlike

the expert in Adams, Dr. Davis did not intend to provide an opinion as to whether the

defendant before the court falsely confessed. By stressing this fact, Mr. Benally is

responding to the concern expressed in Adams that “a proposed expert’s opinion that a
8

witness is lying or telling the truth might be inadmissible . . . because the opinion exceeds

the scope of the expert’s specialized knowledge.” Id. Mr. Benally’s argument does not,

however, address the other problems associated with this type of testimony that were

identified in Adams. 

First, Dr. Davis’s testimony inevitably would “encroach[] upon the jury’s vital and

exclusive function to make credibility determinations.” See id. While Mr. Benally

emphasizes that Dr. Davis would not have opined as to whether she believed Mr. Benally

confessed falsely, with or without the opinion, the import of her expert testimony would

be the same: disregard the confession and credit the defendant’s testimony that his

confession was a lie. Testimony concerning credibility “is often excluded because it

usurps a critical function of the jury and because it is not helpful to the jury, which is

capable of making its own determination regarding credibility.” United States v. Call,

129 F.3d 1402, 1406 (10th Cir. 1997).

In addition, the district court did not abuse its discretion by concluding that the

prejudicial effect of Dr. Davis’s testimony would substantially outweigh its probative

value. See Fed. R. Evid. 403; see also Call, 129 F.3d at 1404-05 (10th Cir. 1997) (noting

that “even if polygraph evidence should satisfy Rule 702, it still must survive the rigors of

Rule 403”). First, with respect to the testimony’s probative value, whatever relevance it

had under Fed. R. Evid. 401 was minimal. Dr. Davis did not examine Mr. Benally, and

was not going to specifically discuss him or the circumstances surrounding his confession

in her testimony. She would only have testified generally about the conditions known to
9

cause false confessions, which would have included a discussion about the effects of

conditions not at issue here, such as torture, in order to establish “the counterintuitive

notion that false confessions do in fact occur.” Aplt. Br. at 15. Even if we were to

assume the limited relevance of this general testimony, we conclude that a district court

could reasonably conclude that the prejudice to the prosecution that would result from

permitting an expert to opine that prior confessions should essentially be disregarded

because they are just as likely to be true as untrue, substantially outweighs the

testimony’s minimal probative value. 

Mr. Benally urges this court to follow the rationale of several decisions from other

circuits reversing district court decisions to exclude expert testimony regarding a

defendant’s susceptibility to making a false confession. Our opinion in Adams

recognized two of these opinions, United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) and

United States v. Shay, 57 F.3d 126 (1st Cir. 1995), and found that they stand only for the

proposition that expert testimony regarding the voluntariness of a confession is

admissible when the expert will testify to the existence of the defendant’s identifiable

medical disorder that raises a question regarding the defendant’s cognitive voluntariness. 

As in Adams, 

[t]his case is readily distinguishable from Hall, 93 F.3d at 1341, where the

defendant claimed that a personality disorder caused him to confess during

interrogation and sign a statement in order to gain approval of his

interrogators, and Shay, 57 F.3d at 129-30, where the defendant claimed

that his confession was the product of a mental disorder characterized by an

extreme form of pathological lying.

 
10

Adams, 271 F.3d at 1246. Mr. Benally’s confession differs from the confessions in Hall

and Shay because he does not identify a medical condition that contributed to his decision

to confess. As for the third case cited by Mr. Benally, United States v. Belyea, 159 F.

App’x 525 (4th Cir. 2005) (unpublished), it too is inapposite because it was decided

principally on the basis of the district court’s inadequate review of the expert’s proffer. 

That is not the issue presented here. 

The district court’s decision to exclude Dr. Davis’s testimony was not “arbitrary,

capricious, whimsical or manifestly unreasonable.” Champagne Metals, 458 F.3d at

1079. The concerns the district court expressed were legitimate and within the bounds of

permissible choice, as reflected by prior rulings of this court. 

III.

Mr. Benally also contends that the district court erred “by imposing the statutory

maximum sentence of twenty years sentence [sic] when it found only that such a sentence

was reasonable, rather than because it constituted a sentence that [is] sufficient, but not

greater than necessary, to accomplish the purposes of a sentence set forth in 18 U.S.C. §

3553(a)(2).” Aplt. Br. at 26. Mr. Benally did not object to this omission at trial, so this

court may only review for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196,

1199 (10th Cir. 2007). 

Sentencing courts “shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” 18 U.S.C. § 3553(a). 

Mr. Benally notes that the district court only said the sentence was “reasonable,” and
11

failed to mention whether his sentence complied with this language. Relying on the

Supreme Court’s recent decision in Kimbrough v. United States, – U.S. –, 128 S. Ct. 558

(2007), he argues that this principle is “not merely one factor among many; it is the

‘overarching provision,’ the very essence of a reasonable sentence.” Aplt. Br. at 32

(quoting Kimbrough, 128 S. Ct. at 570). 

A sentencing court must state under 18 U.S.C. § 3553(c) “the reasons for its

imposition of the particular sentence.” United States v. Cereceres-Zavala, 499 F.3d 1211,

1217 (10th Cir. 2007). However, “where ‘a district court imposes a sentence falling

within the range suggested by the Guidelines, Section 3553(c) requires the court to

provide only a general statement of the “reasons for its imposition of the particular

sentence”.’” Id. (quoting Ruiz-Terrazas, 477 F.3d at 1199). “[T]his generalized

statement need involve no ritualistic incantation to establish consideration of a legal issue,

nor do we demand that the district court recite any magic words to prove that it

considered the various factors Congress instructed it to consider.” Ruiz-Terrazas, 477

F.3d at 1202 (quotation omitted). We will only “step in and find error when the record

gives us reason to think that our ordinary . . . presumption that the district judge knew and

applied the law is misplaced.” Id. at 1202.

The district court did not commit plain error in failing to state that Mr. Benally’s

sentence was “sufficient, but not greater than necessary, to comply with the purposes set

forth in [§ 3553(a)(2)].” See 18 U.S.C. § 3553(a). Mr. Benally does not identify any

authority holding that a trial court must enunciate this particular § 3553(a) factor in order
12

to satisfy its procedural responsibilities at sentencing. Kimbrough does not require the

district court to do any more than it did here. 

IV.

The judgment of the district court is AFFIRMED.