                                                                               FILED
                           NOT FOR PUBLICATION                                  JAN 3 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10295

              Plaintiff - Appellee,              D.C. No. 4:08-cr-0082-DCB-JJM-
                                                 1
  v.

FRANKLIN LLOYD ANTONE,                           MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                     Argued and Submitted September 1, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       A jury convicted Appellant Franklin Lloyd Antone (Antone) of abusive

sexual contact for touching his step-granddaughter R.R.’s genitals while she was

asleep. Antone appeals the district court’s rulings on an asserted Miranda

violation, the voluntariness of his statements to Detective Aaron Brown, the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
exclusion of expert testimony related to false confessions, and the admission of

“other acts” evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the district court’s judgment.



      1.     The district court committed no error when it denied Antone’s motion

to suppress his statements. There was no Miranda violation because Antone was

not in custody when he was questioned by Detective Brown. Antone voluntarily

came to the police station at the date and time he chose, was told that he was free to

leave at any time and would not be arrested that day, and was questioned in a

cordial manner. Considering the totality of circumstances, Antone’s freedom of

movement was not restrained to the degree associated with a formal arrest. See

United States v. Norris, 428 F.3d 907, 912 (9th Cir. 2005).



      2.     The district court suppressed a portion of Antone’s statements to

Detective Brown. Antone argues, however, that his statements made at an earlier

point in the interrogation should have been suppressed. Prior to the statements that

were suppressed, there was no clear promise of leniency or other coercive tactics

that may have overborne Antone’s will. See United States v. Harrison, 34 F.3d




                                        Page 2 of 4
886, 891 (9th Cir. 1994). Therefore, the district court did not err when it declined

to suppress a greater portion of Antone’s statements.



      3.       Although the expert testimony regarding false confessions met the

Daubert reliability test, the district court excluded the testimony because of the

danger that it would usurp the jury’s function of resolving the relative credibility of

the witnesses. The district court’s decision to exclude the expert testimony was

squarely within its discretion. See Boyd v. City and County of San Francisco, 576

F.3d 938, 943 (9th Cir. 2009).



      4.       After conducting a balancing test under Federal Rule of Evidence 403

and considering the factors in United States v. LeMay, 260 F.3d 1018, 1028 (9th

Cir. 2001), the district court acted within its discretion in admitting “other acts”

evidence under Federal Rule of Evidence 413. Based on the similarity of the acts,

evidence of other violations, a lack of intervening circumstances, and the necessity

of the evidence beyond the testimonies already offered at trial, the district court

acted within its discretion when it decided to admit the “other acts” evidence. See

id. at 1030.




                                     Page 3 of 4
AFFIRMED.




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