## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 19 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MESA RITH,

Defendant-Appellant. No. 97-4138

Appeal from the United States District Court

for the District of Utah (D.C. No. 96-CR-36 G)

L. Ronald Jorgensen, Sandy, Utah, for Appellant. Leshia M. Lee-Dixon, Assistant United States Attorn ey, (David J. Schwendiman, United States Attorney, with her on the brief), Uni ted States Attorney’s Office, Salt Lake City, Utah, for Appellee.

Before BRORBY, McKAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.

A jury found Mesa Rith guilty of unlawful possessio n of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861( d). Rith challenges his-2-

conviction on the following grounds: (1) he revokedthe consent his parents had given to search the house and, even if valid, theirconsent did not extend to his bedroom; (2) all incriminating statements should have been suppressed because they were involuntary, he was in custody for purpos es of Miranda , and some statements constituted “fruit of the poisonous tree ”; (3) his Sixth Amendment right of confrontation was violated by the admissio n of a certificate showing nonregistration in the National Firearms Registrati on and Transfer Record; (4) the evidence was insufficient to support a conviction; and (5) the trial judge erred by instructing the jury that they not be “governed by sympathy, prejudice, or public opinion.” This court exercises jurisdiction under 28 U.S.C. § 1291 and affirms the judgment of the district court.

I. Background

Officer Mikkel Roe of the West Valley Police Depart ment was dispatched to a residence in West Valley City, Utah. Officer Roe was informed en route that Sam Rith and his wife were concerned about firearms they had seen their son carry into their home. The address to which Office r Roe was dispatched was the residence of friends of the Riths, a few blocks away from the Rith family home. Sam Rith told Officer Roe that he and his wife had seen their son, Mesa Rith-3-

(“Rith”), carry guns into their home and conceal on e in the garbage can outside the home. Fearful of guns and afraid that their so n was involved in a gang, the Riths requested that Officer Roe check the home and ascertain if the guns were stolen. Officer Roe requested that Detective Terry Chen join him because Detective Chen had experience as a gang task force officer. Upon Detective Chen’s arrival, Sam Rith again gave permission to t he officers to search his home for the guns. Fearing confrontation with his son, Sam Rith declined to accompany the officers during the search. Instead, he gave the officers a house key so that no damage would be done to the house in the event they were not otherwise allowed entry. During his discussion with the officers, Sam Rith told the officers that Mesa Rith was eighteen years of a ge and was not paying rent. When the officers arrived at the Rith home, they en countered Rith on the porch talking to two Midvale, Utah police officers who were conducting an unrelated investigation. Detective Chen indicated Rith’s father had informed them that Rith had brought guns into the house and that they were there to search for the guns. Rith told the officers that they cou ld not search the house and he asked them for a search warrant. When Officer Chen showed Rith the house key Rith said, “Okay, come in.” Detective Chen spoke with Rith in the kitchen, told him again that they knew he had brought illegal guns into the house, re peated that they had-4-

permission to be there, and asked Rith where the gu ns were hidden. Rith told the officers that he only had one gun and that it was i n his bedroom, downstairs, under the mattress. Officer Roe, Detective Chen, a nd a Midvale officer searched the bedroom and found a loaded sawed-off shotgun un derneath Rith’s mattress. They also found in Rith’s open closet a shotgun rou nd, a BB gun, and a checkbook for an account in someone else’s name. Detective Chen returned to the kitchen and confront ed Rith with the shotgun. Rith stated that he knew it was illegal t o possess a sawed-off shotgun and that the guns were probably stolen by the perso n who had given them to him. Officer Roe, who had gone outside and found a rifle in the garbage can, returned to the kitchen and read Rith his Mirandarights. After Officer Roe confirmed that Rith understood his rights, Rith repeated that he k new it was illegal to possess a sawed-off shotgun and that the guns were probably s tolen. The officers then arrested Rith for possession of stolen property andillegal weapons. Testimony received during trial indicated that the barrel of the sawed-off shotgun measured 13 and 3/4 inches and its overall length was 21 3/4 inches, each 4 1/4 inches less than the lawful length. Evidence also showed that no firearm was registered to Mesa Rith in the National Firearm s Registry and Transfer Records.-5- II. Consent to Search the Rith Home

Rith argues that the evidence seized by the police during the search should have been suppressed for two reasons: (1) Rith revo ked his parents’ consent to search the home; and (2) the evidence failed to sho w that Rith’s parents had authority to consent to a search of his bedroom. The trial court’s findings of fact are accepted by this court unless clearly erroneous, with the evidence viewed in the light mo st favorable to the government. See United States v. McAlpine , 919 F.2d 1461, 1463 (10th Cir. 1990). Issues of law, such as whether consentwas valid under the Fourth Amendment, are reviewed de novo. See United States v. Flores , 48 F.3d 467, 468 (10th Cir. 1995).

A. Rith’s Parents’ Consent Was Not Revocable Generally, consent to a search given by someone wit h authority cannot be revoked by a co-occupant’s denial of consent, even if that denial is clear and contemporaneous with the search. In United States v. Matlock, the Supreme Court held that mutual use of property carries with it the risk that just one of the occupants might permit a search of the common areas . 415 U.S. 164, 172 n.7 (1974). Applying Matlock, this court has stated that “[i]f common authority is-6-

established, the person whose property is searched is unjustified in claiming an expectation of privacy in the property because thatperson cannot reasonably believe that the joint user will not, under certain circumstances, allow a search in her own right .” See McAlpine , 919 F.2d at 1463 (emphasis added). Rith argues that his claim to privacy is stronger b ecause he, not his parents, was present at the time he refused to consent to th e immediately ensuing search. According to Rith, consent by a third party to sear ch is valid “only where the defendant [is] physically or constructively absent. ” To support this claim, Rith refers the court to a sentence in Matlock which states that “the consent of one who possesses common authority over premises or eff ects is valid as against the absent, nonconsenting person with whom that authority is shared.” Matlock, 415 U.S. at 170 (emphasis added). The language and str ucture of the Matlock opinion refute such an interpretation. The language to whi ch Rith refers is embedded in a discussion of cases in which the Court addressed is sues previously undecided. Concluding its discussion of these cases, the Courtstated its holding: These cases at least make clear that when the prose cution seeks to justify a warrantless search by proof of v oluntary consent, it is not limited to proof that consent wa s given by the defendant, but may show that permission to search w as obtained from a third party who possessed common authority over or other sufficient relationship to the premis es or effects sought to be inspected.-7-

Id . at 171. This unequivocal holding is unencumbered by the Court’s earlier reference to the “absent, nonconsenting person.” F urthermore, Matlock is uniformly interpreted as allowing a person with sha red authority to grant effective consent to search the common premises despite the o bjections of the subject of the search. See, e.g. , United States v. Morning , 64 F.3d 531, 534-36 (9th Cir. 1995); Lenz v. Winburn , 51 F.3d 1540, 1548 (11th Cir. 1995); United States v. Donlin , 982 F.2d 31, 33 (1st Cir. 1992); United States v. Bradley , 869 F.2d 417, 419 (8th Cir. 1989); J.L. Foti Construction Co. v. Donovan , 786 F.2d 714, 716-17 (6th Cir. 1986); United States v. Bethea , 598 F.2d 331, 335 (4th Cir. 1979). Under Matlock and its interpretive progeny, Rith had no expectati on of privacy that negated his parents’ consent to a sear ch of their home. To hold otherwise would undermine the gravamen of Matlock : “any of the co-habitants has the right to permit the inspection in his own rightand . . . the others have assumed the risk that one of their number might per mit the common area to be searched.” Matlock, 415 U.S. at 171 n.7 (emphasis added).

B. Rith’s Parents Had Authority to Consent to a Se arch of Rith’s Bedroom That Rith’s parents were authorized to grant effect ive consent to the search of their home does not fully resolve Rith’s challen ge. It is the government’s-8-

burden to establish by a preponderance of the evide nce that Rith’s parents had authority to consent to the search of Rith’s bedroo m. See Illinois v. Rodriguez , 497 U.S. 177, 181 (1990); McAlpine , 919 F.2d at 1463. In order to have authority to grant effective consent, Matlock requires “mutual use of the property by persons generally having joint access or control fo r most purposes.” 415 U.S. at
172 n.7.1 Though not mentioned by Rith, the Second and Fourth Circuits have also

interpreted Matlock . In United States v. Davis , the Second Circuit established the following test to meet the requirements of Matlock : the third party (1) had access to the area searched, and (2) a common authority ov er the area, a substantial interest in the area, or permission to gain access to the area. 967 F.2d 84, 87 (2d Cir. 1992). Using this test, the Southern Districtof New York inUnited States v. Perezconcluded that a father had authority to consent t o a search of his son’s bedroom and the closed containers therein, even tho ugh the son had been the sole occupant and user of the bedroom for four years, th e father did not use the bedroom for any purpose, and he had never accessed the personal effects in his son’s closets. 948 F. Supp. 1191, 1201 (S.D.N.Y. 1 996). The determining factor for the court was that the father led the officers into the room and removed a suitcase from his son’s closet, indicating that he had “at a minimum, permission to gain access to the bedroom.” Id . at 1200. The court also noted that there was no evidence the son had ever prohibited his father from examining the contents of his bedroom. See id

. Unlike the Second and D.C. circuits, the Fourth Cir cuit requires proof that the third party has common authority over, general access to, or mutual use of the premises under circumstances that make it reasonabl e to believe that the third party has the right to permit a search . See United States v. Block, 590 F.2d 535, 539-40 (4th Cir. 1978). The Block court held that a mother had both the actual authority and a reasonable appearance of authority to consent to a search of the bedroom of her twenty-three year old son flowing fr om the “normal free access that heads of household commonly exercise in respec t of the rooms of family member occupants.” See id. at 541. The court held, however, the mother did n ot have the authority to consent to the search of her son’s footlocker, albeit in his bedroom, because there is a greater expectation of privacy in a locked container. See id

.

-9- Rith urges this court to use the D.C. Circuit’s int erpretation of Matlock

. 1 In United States v. Whitfield, the D.C. Circuit required proof both of mutual use and joint access in order for the third party to have a uthority to consent to a search. 939 F.2d 1071, 1074 (D.C. Cir. 1991). Applying thi s test to the facts, the Whitfield court held that the police had sufficient basis to believe that a mother-10-

generally had joint access to her twenty-nine year old son’s bedroom because the room was unlocked and because the mother lived in t he house. See id . But, the court held, there was insufficient proof of mutual use of the bedroom, such as evidence that the mother cleaned her son’s room, vi sited with him there, stored possessions in his room, watched television there, or made any use of the room. See id . The court declined to find that there was mutual use merely because a parent-child relationship existed and concluded that there was no evidence to negate the defendant’s exclusive use of his bedroom

. See id . at 1075. The Tenth Circuit applied Matlock inMcAlpine

. See 919 F.2d at 1463. The issue was whether a woman held against her will in the defendant’s residence for two months possessed the authority to consent t o a search of his residence. The court essentially restated Matlock ’s test: “the government bears the burden of proving by a preponderance of the evidence that the consenter had mutual use of the property searched by virtue of her joint access to it, or control for most purposes over it.” Id . at 1463. Applying this test, the court found that the captive woman had authority to consent because she slept in the back room where the guns were found and she had personal possessions th roughout the trailer . See id

. at 1464; see also United States v. Iribe , 11 F.3d 1553, 1556 (10th Cir. 1993) (employing same standard as McAlpine and finding that by virtue of being a coresident, the third party had joint access to the h ouse).2 United States v. Falcon interpreted Matlock differently than McAlpine , but

for the following reasons this court declines to follow Falcon . 766 F.2d 1469, 1474 (10th Cir. 1985). The Falcon court stated that Matlock required “the consenting party [to have] both access to the area and either a substantial interest in or common authority over the property.” See id. (emphasis added). This language, however, is dicta and creates no binding precedent. Critically, the defendant in Falcon conceded that the third party had authority to con sent to a search. The issue in Falcon was whether valid consent to search is distinguishable from valid consent to seize. Citin g Supreme Court precedent, the court held that for purposes of valid third-party a uthority, there is no distinction between the two. Consequently, though seemingly pa rt of the analysis, the Matlock discussion is gratuitous. Rith relies upon United States v. Salinas-Cano in support of his effort to have the Tenth Circuit adopt the Whitfield test. 959 F.2d 861 (10th Cir. 1992). Salinas-Cano stated that Matlock requires “both shared use and joint access or control of a container in order to support third pa rty consent.” See id. at 864. We construe this language and Salinas-Cano generally to be consistent with McAlpine ’s interpretation of Matlock in the disjunctive. -11- This panel clarifies the test used in McAlpine and rejects Rith’s argument that the Whitfield

test be used. Rather than requiring mutual use fr om joint access and control, the McAlpine test is disjunctive: a third party has authority t o consent to a search of property if that third party has eit her (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. 2 Mutual use of property by virtue of joint access is a fact-intens ive inquiry which requires findings by a court that the third party entered th e premises or room at will, without the consent of the subject of the search. For example, in McAlpine , a woman held captive by the defendant in his home had authority to consent to the search simply by virtue of her joint access. Uncon tradicted evidence showed that3 Although the McAlpine court stated that the appropriate Matlock inquiry is the relationship between the consenter and the prop erty searched, not the relationship between the consenter and the defendan t, the court conceded that “the character of the relationship between the consenterand the defendant may bear upon the nexus between the consenter and the property.” 919 F.2d 1461, 1464 (10 th Cir. 1990). -12- she was free to access the rooms of the home becaus e she slept where the guns were found and her personal effects were found thro ughout the residence. Unlike the fact-intensive inquiry of mutual use, co ntrol for most purposes of property is a normative inquiry dependent upon w hether the relationship between the defendant and the third party is the type which creates a presumption of control for most purposes over the property by t he third party. 3 If a relationship creates such a presumption of control and is unrebutted, the third party has authority to consent to a search of the p roperty. Relationships which give rise to a presumption of c ontrol of property include parent-child relationships and husband-wife relationships. See, e.g. , United States v. Ladell , 127 F.3d 622, 624 (7th Cir. 1997) (“A third-partyconsent is also easier to sustain if the relationship betwe en the parties—parent to child here, spouse to spouse in others—is especially clos e.”); United States v. DiPrima , 472 F.2d 550, 551 (1st Cir. 1973) (“[E]ven if a min or child, living in the bosom of a family, may think of a room as ‘his,’ the over all dominance will be in his parents.”). In contrast, a simple co-tenant relati onship does not create a4 Consistent with Matlock ’s admonishment that this inquiry into authority to

consent to a search does not rely upon notions of p roperty law, a relationship giving rise to a presumption of control cannot be p remised on the general proprietary interest in the home of one of the part ies. See Matlock, 415 U.S. at 172 n.7. Thus, a mortgage or lease in the parents’ name would not be sufficient to confer authority to consent to a search of a child’ s bedroom. See, e.g. , Maxwell v. Stephens , 348 F.2d 325, 336 (8th Cir. 1965) (finding that m other had authority to consent to a search independent of her proprietary interest in the house). -13- presumption of control and actual access would have to be shown. See United
States v. Duran , 957 F.2d 499, 505 (7th Cir.1992) (“Two friends in habiting a two-bedroom apartment might reasonably expect to ma intain exclusive access to their respective bedrooms without explicitly making this expectation clear to one another.”); United States v. Heisman , 503 F.2d 1284, 1287 (8 thCir. 1974) (although defendant’s room did not have a door or alock, co-tenant did not have authority to consent to a search of defendant’s pri vate areas). The difference between a husband-wife or parent-child relationship and a co-tenant relationship is that a husband-wife or parent-child relationship raises a presumption about the parties’ reasonable expectations of privacy in relation to each other in spaces typically perceived as private in a co-tenant relat ionship. 4 See, e.g., Ladell , 127 F.3d at 624 (“Third-party consents to search the pr operty of another are based on a reduced expectation of privacy in the premises orthings shared with another.”). Two caveats are important. First, in determining w hether a particular relationship raises a presumption of control for mo st purposes, McAlpine-14-

admonishes that authority to search is premised on a “practical understanding” of the way parties have access to and share the search ed property. See McAlpine , 919 F.2d at 1463. Second, while husband-wife or pa rent-child relationships give rise to a presumption of control for most purposes over the property, that presumption may be rebutted by facts showing an agr eement or understanding between the defendant and the third party that the latter must have permission to enter the defendant’s room. For example, evidence that the defendant paid rent to the third party would tend to show a landlord-tenan t relationship. See Stoner v. California , 376 U.S. 483, 489-90 (1964); see also DiPrima , 472 F.2d at 551 (noting that payment of rent may weigh in favor of defendant’s claim of exclusive right to room). Other examples include a lock on t he bedroom door or an agreement, explicit or implicit, that the third party never enter a particular area. See Morning , 64 F.3d at 536 (“A defendant cannot expect sole e xclusionary authority unless he lives alone, or at least has a special and private space within the joint residence.”); United States v. Kinney , 953 F.2d 863, 866 (4th Cir.1992) (third party did not have authority to consent to s earch of defendant’s locked closet). In this case, there are insufficient factual findin gs that Rith’s parents had joint access to his bedroom to support a conclusion of their authority to consent to a search of the room. There are no findings that R ith’s parents visited with him5 Because Rith’s parents had actual authority to con sent to the search of his

bedroom, analysis of apparent authority to consent is unnecessary. See Illinois v. Rodriguez , 497 U.S. 177 (1990) (holding that Fourth Amendment is not violated when officers enter without a warrant if they reaso nably, albeit erroneously, believe that the third party has authority to conse nt to the entry). -15- in his room, cleaned his room, or otherwise went in to Rith’s room uninvited. Furthermore, the district court chose not to infer that Rith’s parents had access on the basis of their knowledge of hidden guns in his room. The government has, however, shown that Rith lived with his parents and was not paying rent. Although Rith was eighteen ye ars old, these facts raise a presumption of control for most purposes by Rith’s parents over the entire home and thus they could have accessed Rith’s room witho ut his consent. There is no evidence to rebut this presumption: no lock on Rith ’s bedroom door; no agreement with Rith’s parents that they not enter h is room without his consent; no payment of rent. Because the presumption of contro l is unrebutted, Rith’s parents had authority to consent to the search of Rith’s be droom. 5

III. Suppression of Incriminating Statements

Rith argues that the statements he made both before and after being read his Miranda v. Arizona rights should have been suppressed. 384 U.S. 436 (1966). Because the statements that Rith made after being c onfronted with the sawed-off-16-

shotgun but before he was read his Miranda rights were suppressed, Rith’s argument is directed to the statements made before he was confronted with the sawed-off shotgun and those made after he was confr onted with the shotgun and Mirandized . Rith claims that he was in police custody prior to being read his Mirandarights and, even though he was eventually read the se rights, the proximity of his suppressed pre- Mirandaincriminating statements to his postMirandaincriminating statements renders the latter “fruitof the poisonous tree.” He also argues that all of his statements were invo luntary, in violation of the Fifth Amendment. Upon their entry into the Rith home, the officers r equested that Rith’s brothers wait in the living room. They asked Rith to sit at the kitchen table because Detective Chen wanted to speak with him. D etective Chen stated to Rith that he “knew that [Rith] had brought some illegal guns into the house” and he repeated that the police had permission from Rith’s parents to search the house for the guns. Officer Chen then asked Rith where t he guns were located. Rith stated that he had “only one gun” and that it was i n his bedroom under the mattress. He proceeded to tell the police which be droom was his. The officers returned to the kitchen and confronted Rith with the sawed-off shotgun. Prior to receiving his Mirandawarning, Rith responded affirmatively to Detective Chen’s question whether he knew that the possession of an illegal-17-

sawed-off shotgun was a federal offense. He then t old the officers that the guns, given to him by a friend, were probably stolen. Of ficer Roe proceeded to advise Rith of his Mirandarights, and Rith again identified the source of th e guns and indicated that he thought them stolen. The officer s then arrested Rith, approximately forty-five minutes after their initia l entry. The district court concluded that the totality of t he circumstances established Rith was not in custody until after he had been confronted with the shotgun. See United States v. Rith , 954 F. Supp. 1511, 1517-18 (D. Utah 1997). The district court affirmed the magistrate judge’s recommendation that the incriminating statements made after Rith was confro nted with the shotgun but before he was Mirandized should be suppressed. See id. at 1518. The district court then ruled that the statements Rith made afte r being Mirandized were voluntary and therefore admissible. See id. at 1518.
In Miranda v. Arizona , the Supreme Court stated that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise dep rived of his freedom of action in any significant way.” 384 U.S. 436, 444 (1966). In a subsequent case, the Court clarified that a determination of whether an individual was in custody must be made on the totality of the circumstances, and t he ultimate inquiry “is simply whether there [was] a ‘formal arrest or restraint o n freedom of movement’ of the-18-

degree associated with a formal arrest.” California v. Beheler , 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason , 429 U.S. 492, 495 (1977)). The determination of custody is reviewed de novo , though this court defers to the district court’s findings of historical fact and cr edibility determinations. See United States v. Erving L ., 147 F.3d 1240, 1246 (10th Cir. 1998). This court agrees with the district court’s conclus ion that under the totality of the circumstances, Rith was not in police custody until the point at which he was confronted with the illegal shotgun. Rith was questioned while at home and the officers had authority to be there, despite Rit h’s desires to the contrary. See Erving L ., 147 F.3d at 1247 (noting that suspects are less likely to be found to have been in custody for Mirandapurposes if they were interviewed in their own homes). The district court found that the officers did not draw their weapons, handcuff Rith, or otherwise impose physical restrai nt upon him. See Rith , 954 F. Supp. at 1517. The officers’ questions were not har assing nor especially prolonged. Granted, there were five officers in th e home at the time of the questioning; Rith was asked to sit at the kitchen t able because Detective Chen had some questions to ask; and he was not told that he did not have to answer the questions. None of these factors, alone or aggregated, however, overcomes our conclusion that a reasonable person in Rith’s posit ion would have felt free to leave. The officers’ presence, conduct, and questi oning did not rise to the level-19-

of a restraint of freedom of movement of the degree associated with a formal

arrest. Rith next argues that his post- Mirandaincriminating statements were involuntary because of their proximity to his pre- Miranda , albeit suppressed, incriminating statements. In particular, Rith poin ts to this court’s decision in United States v. Perdue , in which, he argues, this court held that incrimi nating statements made after the defendant was given his Mirandarights were involuntary because of the proximity of those state ments to incriminating statements made before he was given his Mirandarights. 8 F.3d 1455 (10th Cir. 1993). Perdue , however, is inapposite because of the Supreme Cou rt’s decision in Oregon v. Elstad . 470 U.S. 298 (1985). In Elstad, the Court held that “[a] subsequent administration of Mirandawarnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 313. The Court also noted with approval that “[o]f the court s that have considered whether a properly warned confession must be suppressed bec ause it was preceded by an unwarned but clearly voluntary admission, the major ity have . . . recognized that [the] requirement of a break in the stream of event s is inapposite.” Id . at 310 (citations omitted).-20-

The Perdue court expressly declined to apply Elstad because the defendant’s first confession in Perdue was involuntary. See Perdue , 8 F.3d at 1468 n.7. Thus, the Perdue court properly considered the effect of the first coerced confession on the voluntariness of the seco nd confession. See id. at 1467-68. Perdue is relevant here only if Rith’s pre- Mirandaincriminating statements were involuntary; otherwise, Elstad applies and Rith may not avail himself of the fruit of the poisonous tree argument

. The question of voluntariness is reviewed de novo , crediting the district court’s findings of fact unless clearly erroneous. See United States v. Glover , 104 F.3d 1570, 1580 (10th Cir. 1997). Whether a defend ant’s incriminating statements were made voluntarily must be assessed f rom the totality of the circumstances, looking both at the characteristics of the defendant and the details of the interrogation. See Schneckloth v. Bustamonte , 412 U.S. 218, 226 (1973). The essence of voluntariness is whether the governm ent obtained the statements by physical or psychological coercion such that the defendant’s will was overborne . See Miller v. Fenton , 474 U.S. 104, 116 (1985). Five factors are considered: “(1) the age, intelligence, and educati on of the defendant; (2) the length of [any] detention; (3) the length and natur e of the questioning; (4) whether the defendant was advised of [his or] her c onstitutional rights; and (5)6 The district court suppressed the first of Rith’s incriminating statements

merely because he had not been given the Mirandawarnings, not because the statements were otherwise involuntarily given. -21- whether the defendant was subjected to physical pun ishment.” Glover , 104 F.3d
at 1579. At no point during the search was Rith threatened w ith or subjected to physical punishment by the officers, the questionin g lasted no longer than fortyfive minutes, and Rith was in the comfortable surro undings of his home. The record contains no evidence to suggest that Rith wa s susceptible to coercion because of his age, intelligence, or education. In fact, as the district court noted, Rith displayed his fortitude by demanding that the officers show him a search warrant before they could enter the house. See Rith , 954 F. Supp. at 1518. That Rith was not advised of his constitutional right is not at all dispositive and is but one factor to consider among others. The totality of the circumstances leads to the conclusion that all of Rith’s incriminating statements were voluntary. 6
Because we conclude that all of Rith’s statements w ere voluntary, Elstad compels the conclusion that the administration of Mirandawarnings prior to Rith’s second set of incriminating statements met t he requirements of the Constitution. Rith’s fruit of the poisonous tree a rgument fails and the incriminating statements were properly admitted.7 Federal Rule of Evidence 803(10) allows for the adm ission of evidence

showing an absence of public record or entry if the record, report, statement, or (continued...) -22- IV. Sixth Amendment Right to Confrontation and Hearsay

26 U.S.C. § 5861(d) makes it unlawful for any perso n “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” In its effort t o prove that Rith failed to register the sawed-off shotgun in his possession, the government introduced into evidence a document signed by Bureau of Alcohol, To bacco and Firearms Specialist David Marshall stating that “after a dil igent search of the . . . [National Firearms Registration and Transfer Record], I have found no evidence that the firearm or firearms described below are registered to, or have been acquired by lawful manufacture, importation, or making by, or t ransfer to Mesa (NMN) Rith.” Affixed to the document was a sealed certificate si gned by Acting Chief of the National Firearms Act Branch Denise Brown certifyin g that David Marshall signed in his official capacity and that his signat ure was genuine. Rith objected to the admission of this document [he reinafter “ATF certificate”] as hearsay and violative of the Confr ontation Clause of the United States Constitution. The trial judge overruled his objection and received the certificate into evidence under Federal Rule of Evi dence 803(10). 7At the close7 (...continued)

data compilation was “regularly made and preserved by a public office or agency,” and is accompanied by either a certificati on in accordance with rule 902 or testimony that a “diligent search failed to disc lose the record, report, statement, or data compilation or entry.” Rule 902(2) provides for self-authentication of documents not under seal. The ATF certificate meets the requirements of the 8 03(10) exclusion from the hearsay rule. Congress assured that the NFRTR w as “regularly made and preserved by a public office or agency” with 26 U.S .C. § 5841, which requires the Secretary of the Treasury to “maintain a central re gistry of all firearms in the United States . . . . This registry shall be known as the National Firearms Registration and Transfer Record.” The ATF documentwas accompanied by certification which fulfilled the requirements of 9 02(2). The trial court’s admission of the ATF certificate over the defendant ’s hearsay objection was proper. -23- of his case, Rith moved to dismiss the indictment p ursuant to Rule 29, Federal Rules of Criminal Procedure, arguing that the gover nment failed to meet its burden of proving the nonregistration of the weapon . After considering Rith’s arguments and supporting documents, the trial judge denied the motion and submitted the matter to the jury. On appeal, Rith argues that his Sixth Amendment right to confront his accusers was deniedby the admission of the ATF certificate. Rith’s argument is two-fold: firs t, he was denied the opportunity to question the signatory, David Marshall; and seco nd, the NFRTR lacks the reliability required by the Confrontation Clause. Because Rith raises a constitutional claim, review of the trial court’s admission of the ATF certificate is de novo

. See Bennett v. National Transp. Safety Bd. , 66 F.3d 1130, 1136 (10 thCir. 1995). The trial court’s finding of8 See Fed. R. Evid. 803(2).

9 See Fed. R. Evid. 803(4). -24- reliability is also reviewed de novo

. See United States v. Joe , 8 F.3d 1488, 1492 (10 thCir. 1993).

A. Inability to Cross-Examine the Declarant The Sixth Amendment provides that “the accused shal l enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. A literal reading of the Confrontation Clause would s eem to preclude all hearsay from being introduced as evidence against a crimina l defendant. Nevertheless, the Supreme Court has declined to impose such a rea ding. In White v. Illinois the Court stated that “unavailability analysis is a nec essary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.” 502 U.S. 3 46, 354 (1992). The White Court proceeded to hold that it was unnecessary to prove unavailability of declarants of spontaneous declarations 8 and statements made in the course of receiving medical care. 9 See id . at 356-57. Because the ATF certificate was not the product of a judicial proceeding, the governmen t’s decision to introduce the ATF certificate into evidence without putting Mr. M arshall on the stand is not assailable for failure to make him available or pro ve him unavailable . See also10 “In all criminal prosecutions, the accused shall e njoy the right . . . to

have compulsory process for obtaining witnesses in his favor . . . .” U.S. Const. amend. VI. -25- Earnest v. Dorsey , 87 F.3d 1123, 1130 n.5 (10th Cir.) (citing White for its limitation of availability requirement), cert. denied, 117 S. Ct. 527 (1996). Additionally, there is no evidence in the record th at the defendant did not have the opportunity employ his Sixth Amendment rig ht of Compulsory Process 10 to subpoena Mr. Marshall. In deciding that there i s little benefit in imposing an unavailability rule for out-of-court statements notmade in the course of a prior judicial proceeding, the Court stated that “[m]any declarants will be subpoenaed by the prosecution or defense, regardless of any Co nfrontation Clause requirement, while the Compulsory Process Clause an d evidentiary rules permitting a defendant to treat witnesses as hostil e will aid defendants in obtaining a declarant’s live testimony.” White , 502 U.S. at 355; see also United States v. Inadi , 475 U.S. 387, 397-400 (1986) (holding that unavai lability of coconspirator need not be proved when “the defendant himself can call and crossexamine such declarants”). Some circuits, including the Tenth Circuit, have fo llowed the Court’s cue and held that there is no violation of the Confront ation Clause when the defendant neglected to exercise rights that would have enable d the him to confront the witnesses against him. See, e.g. , United States v. Jackson , 88 F.3d 845, 847 n.2-26-

(10th Cir. 1996) (noting that the excited utterance admitted into evidence did not violate the defendant’s Sixth Amendment right of co nfrontation in part because the defendant could have called the declarant as a witness and cross-examined him) (citing Inadi , 475 U.S. at 397-98 & n.8,); Reardon v. Manson , 806 F.2d 39, 42 (2d Cir. 1986) (“[I]t has become settled that, at least in those borderline cases where the likely utility of producing the witness i s remote, the Sixth Amendment’s guarantee of an opportunity for effecti ve cross-examination is satisfied where the defendant himself had the opportunity to call the declarant as a witness.”). But see Simmons v. United States , 440 F.2d 890, 891 (7 thCir. 1971) (holding that it is the government’s burden to prod uce the declarant when the opportunity to cross-examine the declarant is essen tial to the defendant’s right of confrontation). Because the admission of the ATF certificate does n ot implicate the Sixth Amendment’s limited requirement of availability, an d because the defendant could have called Mr. Marshall as a witness, Rith’s Sixth Amendment right of confrontation was not denied by the failure of the government to call Mr. Marshall as a witness.11 Rith did not offer his exhibit into evidence. -27- B. Reliability of the NFRTR Database The second basis of Rith’s Sixth Amendment challeng e is that his right to confront his accusers was violated because the ATF certificate, admitted under 803(10), does not embody the sufficient guarantees of reliability that the Confrontation Clause requires. Out-of-court testim ony satisfies the requirements of the Sixth Amendment if it constitutes a “firmly rooted hearsay exception” or demonstrates particularized guarantees of trustwort hiness. See White , 502 U.S. at 356-57 & n.8. Because this court concludes that th e ATF certificate demonstrates particularized guarantees of trustworthiness, we ne ed not address whether 803(10) constitutes a firmly rooted hearsay exception. Rith contends that the NFRTR is not endowed with pa rticularized guarantees of trustworthiness. Upon his objection to the admissibility of the ATF certificate, he submitted to the trial judge a set of discovery documents obtained from the government on March 22, 1996. 11 These documents include statements made by Tom Busey, then chief of the National Firea rms Act Branch of the Bureau of Alcohol, Tobacco, and Firearms during an October 18, 1995 training session for Bureau of Alcohol, Tobacco, and Firearm s (“ATF”) inspectors and other investigative employees. Busey described the process by which ATF specialists search the NFRTR database for registrat ion of Title II weapons. To12 The government urges us to employ the Dutton v. Evans “four-part

analysis” to determine the reliability of the evide nce. 400 U.S. 74, 88-89 (1970) (the statement contained no express assertion aboutpast facts; the declarant was in a position to have personal knowledge of the matters in the statement; the possibility that the declarant’s statement was foun ded on faulty recollection is extremely remote; and the circumstances surrounding the making of the statement were such that the possibility of misrepresentation was unlikely). Dutton ’s factors are neither talismanic nor appropriate here . The Supreme Court itself has (continued...) -28- support his claim of unreliability, Rith points to Busey’s statements that sometimes information is missed “because there’s on ly so many minutes in an hour and so many hours in a day,” and because of er ror in inputting the serial numbers and conducting the search of the suspect’s name or the registration number. Busey also stated that “when I came in a ye ar ago, our error rate was between 49 and 50 percent.”
In Idaho v. Wrightthe Supreme Court stated that “‘particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances.” 497 U.S. 805, 819 (1990). Though “courts have considerable leeway in their consideration of appropriate factor s,” the relevant circumstances are those “that surround the making of the statemen t and that render the declarant particularly worthy of belief,” such that “the testof cross-examination would be of marginal utility.” Id . at 819-22. The following factors are appropriate to test the t rustworthiness of 803(10) evidence: 12 whether cross-examination of the declarant would b e of marginal12 (...continued)

expressly declined to “endorse a mechanical test” f or determining reliability. See Idaho v. Wright, 497 U.S. 805, 822 (1990). The Dutton factors are tailored to ascertain the reliability of a co-conspirator’s statement, viewed by courts as inherently unreliable. Cf. Wright , 497 U.S. at 805 (identifying factors tailored to assessing reliability of statements made by child w itness in child sexual abuse cases) . Here we have a public official who has a legall y enforceable duty to make the out-of-court statement. Cf

. Warren v. United States , 447 F.2d 259, 262 (9th Cir. 1971) (holding that presumption of trustworthi ness in a ATF nonregistration certificate is warranted because “the declarant has a legally enforceable duty to maintain accurate records”).

13 In his remarks, Mr. Busey noted that the total err or rate was lower than eight percent but that the critical-error rate was below three percent. A critical error, in contrast to a common error, is one in whi ch a person’s name is misspelled, presumably thwarting a diligent search for a registration under that person’s name. A common error “is an error in the d atabase entry, but it doesn’t (continued...) -29- utility, id. at 819-20; whether the testimony concerns the resul ts of a mechanically objective test, the notes were taken contemporaneou sly with the performance of the test, and a supervisor reviewed the tester’s me thodology, see Minner v. Kerby , 30 F.3d 1311, 1314-15 (10th Cir. 1994); and whetherthe database from which the evidence comes is open to the public, increasing th e probability that any errors will be found and corrected, see United States v. Metzger , 778 F.2d 1195, 1203 (6th Cir. 1985). The record establishes that the NFRTR database has sufficient guarantees of trustworthiness to satisfy the Sixth Amendment. According to Mr. Busey’s statements, a quality review team was instituted in 1994 and succeeded in reducing the critical-error rate to below three per cent. 13 Additionally, the ATF13 (...continued)

affect a lookup.” -30- discovery documents contain a copy of an audit perf ormed by the Audit Services Division of the Department of the Treasury. The re sults of this February 7, 1996, audit shows that the critical-error rate of the dat abase is no more than 1.5%. Furthermore, the accuracy of the registration checkis buttressed by a second level review by a branch chief. In addition to the reliability of the NFRTR, there is little to be gained from cross-examining Mr. Marshall. If the essence of cr oss-examination is that the declarant’s memory, perception, bias, and narration will be tested, there is little likely benefit from cross-examination of an inspect or who was hired for his skills and ability to perform the job of inspecting the NF RTR database and who does not personally know the defendant or any of his ass ociates. See Minner , 30 F.3d at 1315 (discussing value of cross-examining police chemist in cocaine possession prosecution). Furthermore, Mr. Marshall undoubtedlyconducts hundreds of registration searches in a year. It is unlikely th at he would have any recollection of the Rith search and, consequently, he would be a ble to testify only as to his general search method. See id. (holding that unavailability need not be proved when chemist would likely not recall individual tes t and could testify only as to-31-

standard laboratory procedure); Reardon , 806 F.2d at 41 (same). Crossexamination would be of marginal utility in this in stance. The cases that Rith cites to support his claim are inapposite because the defendants were able to argue that the evidence was deficient as it applied to them. In United States v. Robinson the files upon which the testimony was based were incomplete, resulting in a casual or partial s earch. 544 F.2d 110, 114-15 (2d Cir. 1976). In United States v. Yakobovthe defendant’s name was drastically misspelled on the ATF certificate, undermining any claim of “diligence” in the search. 712 F.2d 20, 24 (2d Cir. 1983). In both c ases the courts’ conclusions are unremarkable: evidence of a deficiency specific to the defendant in the search method or database may constitute sufficient eviden ce of unreliability. See, e.g. , id. (holding that “‘if, in a particular instance , the circumstances indicate a lack of trustworthiness, the evidence should be excluded’”) (quoting Robinson , 544 F.2d at 110) (emphasis added). Here Rith alleges no def ect in the NFRTR database search as it pertained to him. General claims of u nreliability, particularly those that rely upon outdated information, are not suffic ient to raise a constitutional deficiency. See also United States v. Regner , 677 F.2d 754, 758-59 (9th Cir. 1982) (holding defendant’s claim that “possible mot ives” by a foreign government to lie were not cognizable absent some evidence of actual bias toward the defendant).-32-

Seven other circuits allow the admission of the abs ence of public record or entry testimony to prove the nonexistence of some m atter in the face of Confrontation Clause claims. Six of these circuits have specifically allowed the admission of NFRTR certificates. See United States v. Hale , 978 F.2d 1016, 1020-21 (8th Cir. 1992) (NFRTR); Metzger , 778 F.2d at 1202 (NFRTR); United
States v. Herrera-Britto , 739 F.2d 551, 552 (11th Cir. 1984) (foreign certi ficate of nonregistration); United States v. Cruz , 492 F.2d 217, 220 (2d Cir. 1973) (NFRTR); United States v. Mix , 446 F.2d 615, 1622-23 (5th Cir. 1971) (NFRTR); Warren v. United States , 447 F.2d 259, 262 (9th Cir. 1971) (NFRTR); United States v. Thompson , 420 F.2d 536, 544-45 (3d Cir. 1970) (NFRTR). For the foregoing reasons, the admission of the ATF certificate into evidence did not constitute a violation of Rith’s S ixth Amendment right of confrontation.

V. Sufficiency of the Evidence

Rith argues the evidence was insufficient to support a conviction because the government failed to prove Rith’s knowledge that the shotgun barrel was less than eighteen inches in length. A challenge to the sufficiency of the evidence is reviewed de novo , and this court evaluates “the sufficiency of the evidence by-33-

‘consider[ing] the collective inferences to be draw n from the evidence as a whole.’” United States v. Wilson , 107 F.3d 774, 778 (10 thCir. 1997) (quoting United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986)). Here ther e must have been some evidence from which the jury could f ind or reasonably infer that Rith knew (1) the length of the barrel of the shotg un was less than eighteen inches, or (2) the overall length of the shotgun wa s less than twenty-six inches.
See 26 U.S.C. § 5845(a). Rith testified that he did not know the length of h is shotgun, though he handled it several times. But he also testified to knowing that the gun was a sawed-off shotgun, and that he knew the shotgun was much shorter than the rifle. Rebecca Bobich, the ATF agent who measured Rith’s s hotgun, testified that the length of the barrel was 13 and 3/4 inches, 4 and 1 /4 inches shorter than the legal length. Additionally, Rith stated that he knew it was illegal to have a sawed-off shotgun. From the evidence presented, the jury could have re asonably concluded that Rith knew the shotgun was under the legal length. Not only was Rith’s shotgun observably shorter than the legal length, Rith test ified to knowing that the shotgun was sawed off and that it was considerably shorter than the rifle. See United States v. Mains , 33 F.3d 1222, 1229 (10th Cir. 1994) (holding thatintent requirement was met because defendant handled gun, knew it was sawed off, and-34-

gun was visibly shorter than legal length); United States v. Moore , 97 F.3d 561, 564 (D.C. Cir. 1996) (holding that jury could have inferred that defendant knew rifle was under the legal length simply by observin g the 13 1/16 inch weapon). Although Rith testified to not knowing the length o f the shotgun, it is not our role to evaluate the credibility of witnesses and weigh conflicting evidence. See United States v. Ramirez , 63 F.3d 937, 945 (10 thCir. 1995). This court concludes that the evidence was sufficient to support the con viction.

VI. Jury Instructions

Finally, Rith argues that his case should be remand ed because the trial judge erred in instructing the jury that they are n ot “to be governed by sympathy, prejudice, or public opinion.” Rith argues that th is instruction “misled the jury into believing that they must convict, regardless o f mercy or leniency.” The propriety of a jury instruction to which an obj ection was made at trial is reviewed de novo . The conviction will not be disturbed, however, a bsent a “‘substantial doubt that the jury was fairly guided .’” United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994) (quoting United States v. Mullins , 4 F.3d 898, 900 (10th Cir.1993)).-35-

The trial judge’s admonition to the jury that it wa s not to be swayed by “sympathy, prejudice, or public opinion” did not me an that the jurors may not be swayed against the defendant only; it meant that th ey should not be swayed by sympathy, prejudice, or public opinion in favor of either party. The remainder of the instruction verifies its balance and propriety: “The defendant and the public expect you will carefully and impartially consider all of the evidence in this case, follow the law as I’m stating it to you, and reach a just verdict.” To the extent the defendant’s appeal seeks to permi t jury nullification, the law is clear: a criminal defendant is not entitled to have the jury instructed that it can, despite finding the defendant guilty beyond a reasonable doubt, disregard the law. See United States v. Grismore , 546 F.2d 844, 849 (10th Cir. 1976). The jury’s role is to apply the law to the facts of the case. The trial judge instructed the jury appropriately.

VII. Conclusion

The judgment of the district court is accordingly AFFIRMED in all respects.-36-