                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3647
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Charles James Jones

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: October 20, 2016
                             Filed: December 2, 2016
                                  ____________

Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

      Shalonda Clark and defendant Charles Jones lived together on the White Earth
Indian Reservation. Their house burned down while they were both intoxicated and
Clark died. Jones was thereafter convicted by a jury of second degree murder. The
district court1 sentenced him to 324 months imprisonment. Jones now appeals the
district court's exclusion of expert testimony and photographs, the admission of
several statements he made to police officers, and the application of a vulnerable
victim sentencing enhancement. We affirm.

                                          I.

      Shalonda Clark and Charles Jones had a history of domestic violence and were
addicted to methamphetamine. Eventually they were reduced to living in their living
room with an electric stove for heat. In December 2013 Jones acquired a bottle of
butalbital, a migraine drug for which he had no prescription. After he and Clark took
a large number of these pills, a fire started in the house they shared and spread
rapidly. Clark died on the living room couch.

        After the fire had started, Jones walked to the nearby home of the Sip family
from where a family member called the police. When an officer responded, he was
invited inside the Sip house where he found Jones in the living room. He asked Jones
how the fire had started and where Clark was at the time. Jones told the officer that
Clark had been sleeping on the couch and that he had thrown a burning blanket over
her. He explained that he was "sick of the shit she put me through" and that she had
"been nothing but cruel to me." Jones then walked into the kitchen and tried to stab
himself. Two officers were able to stop him and put him in handcuffs. While he was
led to their police car Jones told them, "You finally fucking got me." When an officer
asked him what he meant, Jones responded, "That's all you're getting. I hope I get the
max."




      1
       The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

                                         -2-
       The next day officers tried to question Jones after reading him his Miranda
rights. They told him that Clark was dead and they needed to talk. Jones responded
that he had nothing to say and that he wanted to end the interview. Nevertheless, he
went on to volunteer that "she's a wicked bitch and that's it." Jones later
unsuccessfully moved to suppress these statements after he had been charged with
second degree murder.

        Fire investigator R. Paul Bieber appeared at trial as an expert witness for Jones.
Bieber's initial disclosure had stated that he would testify about the area where the
fire started, whether it had been intentionally lit, and whether the government expert's
investigation had been influenced by cognitive bias. After the government moved to
exclude Bieber's testimony, the defense submitted two amended and more detailed
disclosures. The district court decided to admit Bieber's testimony about the origin
and cause of the fire, but not about the potential cognitive bias of the government's
expert which had not been mentioned in either of Bieber's amended disclosures.
Jones was convicted of second degree murder and was sentenced to 324 months
imprisonment after the district court applied a vulnerable victim enhancement. Jones
appeals.

                                           II.

       Jones argues that the district court committed reversible error by strictly
limiting Beiber's testimony to the opinions he had provided in his final expert
disclosure under Federal Rule of Criminal Procedure 16(b)(1)(C). The parties dispute
the standard of review. The government argues that since Jones had not provided an
offer of proof for Bieber's excluded testimony, that exclusion cannot be reviewed or
at least only for plain error.

      The record shows, however, that Jones did make an offer of proof on Bieber's
excluded testimony and thus preserved the issue for appellate review. Jones argues

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that we should review de novo the exclusion of his expert testimony because it denied
him the right to present a defense. Our longstanding precedent makes clear, however,
that the standard is abuse of discretion. See United States v. Coutentos, 651 F.3d
809, 820 (8th Cir. 2011). Rule 16(b)(1)(C) required Jones to disclose a written
summary of the testimony Bieber intended to offer, describing Bieber's "opinions, the
bases and reasons for those opinions, and [his] qualifications." Fed. R. Crim. P.
16(b)(1)(C). If a party fails to make an adequate expert disclosure, the district court
may "prohibit that party from introducing the undisclosed evidence." Fed. R. Crim.
P. 16(d)(2).

       Bieber provided his first expert disclosure to the government on February 13,
2015. In that disclosure, Bieber stated that he would testify about what caused the
fire, where it originated, whether it had been started intentionally, and "the presence
and influence of domain-irrelevant information" such as cognitive bias which might
have affected the government expert's investigation. After the government moved to
preclude Bieber's testimony, he provided an amended disclosure on February 24,
which was the day before the pretrial conference. In that disclosure, Bieber stated
that he planned to testify that the cause and specific origin of the fire could not be
determined scientifically and that any "conclusions as to the intentional or accidental
nature of the fire are not based on an examination or analysis of physical, fire-scene
evidence, nor are they based on scientific, engineering or technical expertise."

       After the trial began on March 2, the district court announced that it would only
allow Bieber to testify to the opinions outlined in his amended disclosure if he were
to provide more detail about the reasons underlying those opinions. After Bieber's
second amended disclosure was submitted on March 4, he was able to testify to his
opinions about the origin and cause of the fire, but not about alleged deficiencies in
the government expert's investigation, cognitive bias, or other possible causes of the
fire. Jones argues on appeal that the district court committed reversible error by
excluding these areas from the expert's testimony.

                                          -4-
       We conclude that the district court did not abuse its discretion by excluding
Bieber's proposed testimony about deficiencies in the government expert's
investigation and his cognitive bias. As the court pointed out, Bieber's abbreviated
description of these issues had not disclosed the reasons for his opinions as required
by Rule 16(b)(1)(C). The defense then chose not to supplement his disclosures. The
court did not abuse its discretion by excluding this expert testimony which had not
been properly disclosed. See United States v. Holmes, 670 F.3d 586, 599 (4th Cir.
2012). Nor did the district court abuse its discretion by excluding Bieber's proposed
testimony about other possible causes of the fire. Bieber stated that he had intended
to testify that it was impossible to identify the specific cause and origin of the fire.
Because of his limited disclosures the district court did not abuse its discretion by
limiting his testimony, see Holmes, 670 F.3d at 599, or prohibiting the introduction
of photographs about alternate possible causes of the fire. See United States v.
Thetford, 806 F.3d 442, 446 (8th Cir. 2015) (standard of review).2

                                          III.

       Jones argues that the district court3 should have suppressed three statements he
made to police officers. On an appeal from the denial of a motion to suppress, factual
findings are reviewed for clear error and legal conclusions de novo. United States v.
Allen, 713 F.3d 382, 386 (8th Cir. 2013). The Fifth Amendment requires suspects to
be informed of their Miranda rights before any custodial interrogation. United States
v. Sanchez, 676 F.3d 627, 630 (8th Cir. 2012). Interrogation, for Miranda purposes,

      2
       Jones argues for the first time in his reply brief that there had been no need to
disclose testimony before it was offered to rebut that of the government's expert. We
generally "do not consider arguments raised for the first time in a reply brief," United
States v. Picardi, 739 F.3d 1118, 1123 n.3 (8th Cir. 2014), and we decline to do so
here.
      3
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

                                          -5-
means "express questioning" and "words or conduct that officers should know [are]
'reasonably likely to elicit an incriminating response from the suspect.'" United States
v. Briones, 390 F.3d 610, 612 (8th Cir. 2004) (quoting Rhode Island v. Innis, 446
U.S. 291, 301 (1980)). If officers fail to inform a suspect of his rights, "any statement
gained from the violation" is generally inadmissible during the government's case in
chief. Sanchez, 676 F.3d at 630.

       Jones first challenges the district court's decision not to suppress his initial
statements to investigator Luke Sweere while his house was burning and Clark's body
had not yet been discovered. When Sweere responded to the fire, witnesses told him
that Jones was at the Sip house. Sweere went there, a resident invited him in, and he
found Jones sitting on the living room couch. Jones was covered in soot and his hair
was singed. He smelled of smoke and was dressed in clothes that appeared to be
burned. Sweere asked where Clark was, and Jones answered that she was on the
couch. When asked how the fire had started, Jones stated that "I started it." Sweere
then asked him how and why he had started the fire, whether he and Clark had been
using drugs, whether Clark had been awake when the fire started, and what she had
done that day. Sweere noticed that Jones appeared to be under the influence of drugs,
and Jones confirmed that. Nonetheless, Jones appeared alert, and he answered
questions coherently.

       The district court did not err in admitting Jones' statements. Most of them were
admissible under the public safety exception to the Miranda rule. That exception
permits a suspect's answer to a question to be admitted into evidence even if he had
not first been informed of his Miranda rights so long as the purpose of the officer's
question was to ensure public safety, not merely to elicit evidence. United States v.
Everman, 528 F.3d 570, 572 (8th Cir. 2008). An objective standard is used to decide
whether an officer's question was meant to aid public safety. Id. In the situation here,
most of Sweere's questions served two public safety purposes. Clark was still missing
when Sweere asked about where she was, and the fire was still burning when Sweere

                                          -6-
asked Jones how it started. These were public safety concerns, and the questions
were "not designed solely to solicit testimonial evidence." Id. Thus, the responses
by Jones were admissible. See id. Moreover, any error in the admission of the
remaining statements would have been harmless. For example, when Sweere asked
why Jones had started the fire, he replied that Clark had been "nothing but cruel" to
him. Given the extent of the trial evidence, it is clear beyond a reasonable doubt that
this remark would not have had a significant influence on the jury's verdict. Any
error in its admission was therefore harmless. See United States v. Farlee, 757 F.3d
810, 820 (8th Cir. 2014).

       Jones next argues that all of his statements should have been suppressed
because at the time he made them he had been intoxicated by a prescription drug.
Intoxication does "not automatically render a confession involuntary; rather, the test
is whether th[is] mental impairment[] caused the defendant's will to be overborne."
United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990). The district court found
that even though Jones had been intoxicated, his will had not been overborne and his
statements were voluntary. In the audio recording of his interview with Sweere,
Jones spoke slowly and appeared to answer some questions unresponsively, but
officers testified that he had been coherent during his confession. Given this record,
we cannot say that the district court clearly erred in determining that his "will was . . .
not overborne."

      Jones also argues that the district court should have suppressed statements he
made after being handcuffed. Jones told investigator Daniel Skoog, "You finally
fucking got me." When Skoog asked him what he meant, Jones responded, "That's
all you're getting. I hope I get the max." Jones' first statement was not made in
response to an officer's question and was admissible. See United States v. Chipps,
410 F.3d 438, 445 (8th Cir. 2005). Jones' second statement also was admissible
because "[a]n officer's request for clarification of a spontaneous statement" does
generally not amount to interrogation. Id.

                                           -7-
       Jones finally argues that the district court should have suppressed a comment
that he later made in jail after invoking his right to remain silent. Officers must stop
questioning if a suspect clearly and consistently expresses a desire to remain silent.
See United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007) (per curiam).
When special agent Daniel Baumann tried to question Jones in a jail interview room
the day after the fire, Baumann read Jones his Miranda rights. Jones replied, "I ain't
got shit to say to you, okay?" Baumann explained that he wanted to talk because
Clark was dead and Jones had made incriminating statements during the fire. Jones
responded that he did not know why he had made those statements. Baumann then
told Jones he would send him back to his cell if he did not want to talk. Jones replied
that was what he wanted, and Baumann said, "Okay." Then, Jones added, "She's a
wicked bitch and that's it."

        Jones was clearly in custody at the time of that last statement so the only
question is whether it was spontaneous or the product of unlawful interrogation. The
district court found that it had been unprovoked and that Baumann had not violated
Jones' rights because he stopped his questioning as soon as the latter clearly said that
he wanted to end the interview. We conclude that the district court did not clearly err
in determining that Jones' final statement was spontaneous and unprovoked.
Baumann had made clear that the interview was over and did not ask any question to
elicit the statement which was not the product of interrogation. The district court did
not err in admitting it.

                                          IV.

       At sentencing, the district court found Clark was a vulnerable victim and added
two levels to Jones' guideline offense level. The enhancement for a vulnerable victim
is appropriate if "the defendant knew or should have known" that he was a vulnerable
victim. U.S.S.G. § 3A1.1(b)(1). A victim may be vulnerable because of "age,
physical or mental condition," or he is "otherwise particularly susceptible to the

                                          -8-
criminal conduct." U.S.S.G. § 3A1.1 cmt. n.2. We review the district court's
interpretation of the guidelines de novo and its factual findings for clear error. United
States v. Betone, 636 F.3d 384, 388 (8th Cir. 2011).

       Jones argues that the enhancement should not apply because the district court
should not have admitted or considered his intoxicated statements, should have heard
additional testimony from Bieber, and should have realized that he was too
intoxicated to know that Clark was vulnerable. We conclude that the district court
did not err in applying the enhancement. The court heard evidence showing that
Clark had been asleep when the fire started and that Jones would have known that she
was impaired because he had supplied her with drugs. Based on Jones' later
interactions with police officers, it was not clear error for the district court to find that
he was coherent enough to know that Clark had been vulnerable because of her
mental condition.

                                             V.

       For these reasons we affirm the judgment of the district court.
                       ______________________________




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