                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 29, 2015
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                      No. 15-2037
 DANIEL PHILLIP TENORIO,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 1:13-CR-03145-JCH-1)


Samuel L. Winder (Jerry A. Walz with him on the briefs), Walz and Associates,
P.C., Albuquerque, New Mexico, for Appellant.

Novaline D. Wilson, Assistant United States Attorney (Damon P. Martinez,
United States Attorney, and Kyle T. Nayback, Assistant United States Attorney,
with her on the brief), Office of the United States Attorney, Albuquerque, New
Mexico, for Appellee.


Before TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit
Judges.


TYMKOVICH, Chief Judge.


      During Daniel Tenorio’s jury trial, the district court permitted the

government to cross-examine Tenorio regarding whether he took a polygraph
examination after he testified his confession was coerced. Tenorio challenges the

line of questioning, contending the district court abused its discretion in allowing

examination regarding the polygraph test. He also claims that the district court’s

limiting instruction about the polygraph test to the jury was improper.

      We conclude that under established precedent Tenorio opened the door to

evidence regarding his polygraph examination by claiming his confession was

coerced. In those circumstances, the court can allow limited examination about

the facts surrounding a polygraph test to rebut claims of coercion. We also find

the district court properly instructed the jurors to consider polygraph evidence

only as explanation of the government’s interrogation and not the guilt of the

defendant.

      We AFFIRM the conviction.

                                 I. Background

      The Bureau of Indian Affairs began investigating Daniel Tenorio based on

sexual abuse allegations by Tenorio’s sixteen-year-old niece. The niece claimed

that Tenorio touched her intimately, and frequently made unwanted sexual

comments to her. Special Agent Travis LeBeaux interviewed the niece, two of

her sisters, and her nephew.

      Agent LeBeaux later interviewed Tenorio, who denied the accusations.

Agent LeBeaux asked him to take a polygraph test, and Tenorio agreed, saying he

had nothing to hide. After reading and signing consent and advice of rights

                                         -2-
forms, Tenorio took the test administered by Agent Jennifer Sullivan, an FBI

polygrapher.

      Based on the results of the polygraph test, Agent Sullivan suspected

Tenorio was deceptive. She followed-up with confrontational questions, for

example by informing him that he was not being truthful and telling him to “man

up.” Tenorio then confessed and wrote an apology letter to the victim. He wrote

such things as, “I should not have grabbed her breast it was wrong,” and “I should

not have grabbed her ass.”

      Tenorio was indicted on two counts of knowingly engaging in sexual

contact in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3). He moved to

suppress his confession as involuntary, which the district court denied. Prior to

trial, the government filed a motion in limine to permit testimony related to the

polygraph test “in responding to any claim Tenorio [might make] that his

confession was coerced or involuntary, or that the United States’ investigation

was inadequate.” R., Vol. I at 69. In response, Tenorio moved to prevent

admission of the test and results.

      In reserving a final ruling on the motion, the district court warned that

testimony regarding the polygraph test would likely be overly prejudicial and

therefore inadmissible, but that it would revisit the ruling “depending on what

evidence [Tenorio] elicits during the course of his questioning about the

confession.” Id. at 159.

                                         -3-
       During the trial, Tenorio’s attorney asked about the apology letter. Tenorio

repeatedly claimed that he only wrote down what the FBI agent told him to write.

He also claimed that he could not understand why the agent did not believe his

innocence. For example, he said he was distraught during the interview,

“[b]ecause the way she [the polygrapher] was coming at me and—see, how come

she don’t believe me when I was telling her that [I didn’t do it]?” Supp. R., Vol.

I at 283.

       In response to this testimony, the government requested that it be permitted

to cross-examine Tenorio about taking a polygraph exam and failing it. The

district court determined that Tenorio opened the door to this questioning, and

allowed evidence of the voluntary polygraph but not the results. The court said,

“the jury will be grossly misled if they are allowed to rest on the directive of Mr.

Tenorio that he could not understand why Ms. Sullivan continued to tell him to

tell the truth and repeatedly said she thought he was lying.” Supp. R., Vol. I at

310. When Tenorio’s counsel asked what details surrounding the polygraph

examination would be admitted, the court clarified the purpose of the evidence,

which was to explain Agent Sullivan’s actions: “I’m going to allow them to offer

testimony that he voluntarily took the polygraph test and that was the basis for

Agent Sullivan’s challenge to his credibility and refusal to believe what he said

thereafter.” Id. at 315.




                                         -4-
      During Tenorio’s cross-examination, the government highlighted that

Tenorio claimed a coerced confession, but that the confession occurred in the

context of a voluntary polygraph examination:

            Q.   Your story is that Agent Sullivan was yelling at you,
                 right?
            A.   Yes, sir.
            Q.   That she forced you what to say [sic] and what to write.
                 That’s your testimony today, isn’t it.
            A.   Yes, sir.
            Q.   But that story isn’t true, Mr. Tenorio, is it? It’s not true,
                 is it?
            A.   It’s true. Because I was there, and she was questioning
                 me, so I told her the truth.
            Q.   Special Agent Sullivan of the FBI administered a
                 polygraph examination that you took voluntarily. That’s
                 true, isn’t it?
            A.   What Trevor (sic) told me, Officer Trevor said he wants
                 to take me to take the test . . . . Trevor was the one that
                 set that down. “I can take you to take a polygraph test.”
                 That was in San Felipe that he asked me, when he
                 questioned me. And I told him, “I don’t know what’s a
                 polygraph test.” I wasn’t the one that said it. He said it.
            Q.   You told Special Agent LeBeaux that you didn’t know
                 what a polygraph test was?
            A.   Yes, sir.
            Q.   And you, you went and agreed to take it, correct?
            A.   Yes, sir. Because I told him that I don’t have – I didn’t
                 do nothing. That’s what I told him.
            Q.   Yes. You wanted to clear your name?
            [Bench conference.]
            A.   Yes, sir.
            Q.   And that’s why you consented to interview with
                 polygraph; is that right?
            A.   Yes, sir.

Supp. R., Vol. I at 320–22.




                                        -5-
      At the close of trial, the district court gave a limiting instruction regarding

the polygraph examination:

             The defendant testified he did not know why Agents Sullivan and
             LeBeaux continued to question him after a certain point in time,
             and he has referred to a polygraph examination. Federal law
             does not permit you to consider polygraph examinations, and it
             was admitted only to explain the action of the agents. I am going
             to instruct you you are not to speculate or take into consideration
             anything regarding the polygraph examination or its potential
             results in reference to the guilt or innocence of the defendant or
             in reference to whether or not he did or did not commit the acts
             charged in the indictment.

R., Vol. I at 200.

      The jury convicted Tenorio of both counts in the indictment. Tenorio filed

a motion for acquittal or a new trial. He argued that the jury instruction regarding

the polygraph test would lead a reasonable juror to infer that Tenorio had failed

the test, and therefore the court’s mention of the test was improper. The court

denied the motion because the defendant would have misled the jury if the fact of

a lie detector were not mentioned and the limiting instruction properly informed

the jury how to consider the testimony.

                                    II. Analysis

      Tenorio contends that the district court admitted evidence relating to the

polygraph examination in violation of Federal Rule of Evidence 403: “The court

may exclude relevant evidence if its probative value is substantially outweighed

by a danger of . . . unfair prejudice . . . .” Specifically, he argues the district


                                           -6-
court did not weigh the prejudicial effect of the evidence. “We review a district

court’s decision to admit evidence for an abuse of discretion and will ‘reverse a

decision only if it is manifestly erroneous.’” United States v. Hood, 774 F.3d

638, 644 (10th Cir. 2014) (quoting United States v. Irving, 665 F.3d 1184, 1210

(10th Cir. 2011)). We give district courts considerable discretion in performing

the Rule 403 balancing test, because “district court judges have front-row seats

during trial and extensive experience ruling on evidentiary issues . . . .” United

States v. Cerno, 529 F.3d 926, 935–36 (10th Cir. 2008).

      The admission of polygraph evidence is carefully circumscribed. Prior to

1997, we had a per se rule that “polygraphs are not admissible to show that one is

truthful.” United States v. Hall, 805 F.2d 1410, 1416 (10th Cir. 1986). But after

the Supreme Court developed new rules governing the admissibility of expert

testimony beginning in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), we concluded our per se rule was untenable. Instead, we determined

where a polygraph examination is treated as scientific evidence, we must subject

it to Federal Rule of Evidence 702, which governs the admission of expert

testimony. United States v. Call, 129 F.3d 1402, 1404–05 (10th Cir. 1997). See

also United States v. Allard, 464 F.3d 529, 533 (5th Cir. 2006).

      But where polygraph evidence is not offered as scientific evidence, neither

Rule 702 nor a per se rule against admissibility applies. See Hall, 805 F.2d at

1416–17 (acknowledging a per se ban against polygraph evidence as proof of

                                         -7-
truthfulness, but allowing such evidence to explain the detective’s actions). The

circuits have uniformly held, before and after Daubert, that when the defendant

opens the door to polygraph evidence, such as attacking the nature of a criminal

investigation or asserting that testimony was coerced, polygraph evidence is

admissible rebuttal evidence subject to Rule 403’s probative value and prejudicial

effect considerations. See United States v. Blake, 571 F.3d 331, 346 (4th Cir.

2009) (“Polygraph results are generally inadmissible. However, testimony

concerning a polygraph examination is admissible where it is not offered to prove

the truth of the polygraph result, but instead is offered for a limited purpose such

as rebutting a defendant’s assertion that his confession was coerced.” (citations

and internal quotation marks omitted)); Allard, 464 F.3d at 533 (rejecting that

Rule 702 applies where polygraph evidence provides a rebuttal account of the

facts and circumstances surrounding a confession); United States v. Johnson, 816

F.2d 918, 923 (3d Cir. 1987) (“[C]ase law shows that evidence concerning a

polygraph examination may be introduced to rebut an assertion of coercion of a

confession . . . .”); United States v. Kampiles, 609 F.2d 1233 (7th Cir. 1979);

Tyler v. United States, 193 F.2d 24, 31 (D.C. Cir. 1951).

      Hall decides this case. As in Hall, Tenorio opened the door for questioning

about his polygraph test by testifying his confession was coerced. In that case,

we allowed the government to reference polygraph tests (and results) for the

limited purpose of rebutting the defendant’s challenge to investigation techniques.

                                         -8-
Hall had offered a description of a bank-robbery suspect, but then failed two

polygraph tests. When Hall subsequently changed his description, the

investigator did not launch a full-scale investigation because she thought Hall was

lying. The district court, as here, had originally decided that evidence of the

polygraph exams was overly prejudicial under Rule 403, but warned defendant’s

counsel that if counsel continued to attack the quality of the investigation,

evidence of the polygraphs would be admissible. Sure enough, defendant’s

counsel asked what the investigator did with Hall’s second suspect description,

and so the court allowed evidence not only that Hall had taken two polygraph

tests, but that he had failed both tests. Tenorio’s cross-examination is, if

anything, a narrower application of the rule in Hall. 1

      Given Hall, Tenorio concedes “admission of the results of polygraph

examinations,” is proper when “the nature and extent of the criminal investigation

is called into question” and when “the voluntariness of a confession is

challenged.” Appellant Br. at 13–14. He also admits that he questioned the

quality of the government’s investigation and testified that he was bullied into

confessing. Id. at 14.

      1
         Tenorio argues that Hall does not apply because Call has superceded it.
In Call, we said that a per se rule against polygraph results, where the results are
admitted for the purpose of showing that one is truthful, was inappropriate in
light of Daubert. 129 F.3d at 1404–05. That is, in Call we lightened the
evidentiary requirement. This clarification, however, is tangential. Here, the
government does not seek to admit polygraph evidence to show that one is
truthful, so neither the per se ban nor the Daubert revision is relevant.

                                          -9-
      He nevertheless asserts that admission was improper because the real

reason the district court admitted the evidence was to allow the government to

attack Tenorio’s credibility. To be sure, where rebuttal-value is mere pretext, but

the party in fact seeks to admit polygraph evidence as an indicator of honesty,

that party must satisfy the criteria for admission under Daubert. Tenorio seems to

argue that because the polygraph evidence undermined his testimony regarding

coercion, it was improperly admitted. His argument misses the point.

      When a defendant says he was coerced but only tells half the story, rebuttal

evidence necessarily impacts the credibility of that defendant’s testimony. Thus,

the distinction Tenorio seeks to draw would prohibit polygraph evidence in every

instance, at least without a Daubert hearing. Case law and basic logic reject the

notion that all such rebuttal evidence must be either rejected or presented by an

expert. See, e.g., Blake, 571 F.3d at 348 (admitting polygraph evidence without a

Daubert hearing to rebut a claim of coercion, because allowing only one side of

the story would be illogical).

      Although Tenorio opened the door to the evidence, we must still inquire

whether it should be excluded as unfairly prejudicial pursuant to Rule 403. We

have little difficulty concluding that the district court acted within its broad

discretion here. In response to the motions in limine, the district court weighed

the prejudicial and probative value of the polygraph evidence. The court decided

at that time that the prejudicial effect of testimony would outweigh its probative

                                          -10-
value. The court warned, however, that it would revisit the ruling depending on

what Tenorio said about his confession.

      It is not true, then, that the district court failed to consider prejudicial effect

of the testimony. The prejudicial value of the evidence remained constant when

Tenorio took the stand. The court accurately noted, however, that Tenorio’s

presentation of half of the story gave the government a strong interest in

completing the other half. 2 Even so, the court did not allow evidence regarding

results and instructed the jury to consider the polygraph test only in explaining

the agents’ actions. Cross-examination was brief and of limited scope. Further,

any prejudice can hardly be “unfair” when Tenorio, who was explicitly warned

about this possibility, went on to argue that he was coerced anyway. See

Kampiles, 609 F.2d at 1244 (“It would have been unfair to allow defendant to

present his account of his admissions, based upon the alleged threats by [the

agent], without allowing the Government to demonstrate the extent to which

failure of the polygraph precipitated the confession.”).

      Finally, Tenorio’s assertion that the district court improperly instructed the

jury is meritless. We review jury instructions de novo “to determine whether, as

a whole, the instructions correctly state the governing law and provide the jury


      2
        Supp. R., Vol. I at 310 (“I think the jury will be grossly misled if they are
allowed to rest on the directive of Mr. Tenorio that he could not understand why
Ms. Sullivan continued to tell him to tell the truth and repeatedly said she thought
he was lying.”).

                                          -11-
with an ample understanding of the issues and applicable standards.” United

States v. Dowlin, 408 F.3d 647, 667 (10th Cir. 2005). Not only do the jury

instructions mirror those we approved in Hall, 3 they were, if anything, beneficial

to Tenorio. The court told the jury “not to speculate or take into consideration

anything regarding the polygraph examination or its results in reference to the

guilt or innocence of the defendant or in reference to whether or not he did or did

not commit the acts charged in the indictment.” R., Vol. I at 200. This correctly

states the law and provides the jury with an understanding of the issues.

                                III. Conclusion

      For the foregoing reasons, Tenorio’s conviction is AFFIRMED.




      3

      Now, I’m going to instruct you that you are not to speculate . . . that
      you are not to take into consideration and you are not to speculate as to
      what those polygraph examinations or the results of those were in
      reference to the guilt or innocence of the defendant in reference to
      whether or not he did or did not commit the acts that are charged in the
      indictment.

Hall, 805 F.2d at 1415–16.

                                        -12-
