                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4415



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JOSEPH ANDREW BELYEA, II,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-03-524)


Argued:   October 28, 2005              Decided:     December 28, 2005


Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.


Remanded with instructions by unpublished per curiam opinion.


ARGUED: Geremy Charles Kamens, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.      Erik Russell
Barnett, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.    ON BRIEF:
Frank W. Dunham, Jr., Federal Public Defender, Alexandria,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Joseph Belyea was convicted for possession of a firearm

by an unlawful user of a controlled substance in violation of 18

U.S.C. § 922(g)(3).   Belyea appeals his conviction on the grounds

that the district court erred in excluding expert testimony on

false confessions and in denying his motion for a new trial based

on newly discovered evidence.   We remand for further consideration

of these issues.   Belyea also appeals his sentence enhancement for

obstruction of justice, and we hold this issue in abeyance pending

the outcome of the proceedings on remand.



                                 I.

                                 A.

          In August 2001 Belyea attended a party hosted by Michelle

Gay at her parents’ home in Sterling, Virginia.   This was the only

time Belyea ever visited the Gay home.   The partygoers, including

Belyea, took methamphetamine. Just over one year later, in October

2002, Michelle Gay’s father, Ralph Gay, discovered that three guns

were missing from a wooden hope chest in his bedroom.   When Mr. Gay

reported the matter to the police, it was discovered that two of

his missing (or stolen) guns, a revolver and a semi-automatic

handgun, had been found during the October 2001 search of a car

belonging to a suspected drug dealer in Washington, D.C.




                                 2
              In August 2003 Special Agent Todd Freiwald from the

Bureau   of     Alcohol,   Tobacco,     Firearms      and   Explosives      (ATF)

interviewed Belyea about the suspected theft of Ralph Gay’s guns.

When Belyea’s memory appeared to falter, Agent Freiwald told Belyea

two lies:     that one of the stolen guns had been used in a murder in

D.C. and that it bore only one fingerprint, Belyea’s. Upon hearing

these lies, Belyea was “pretty scared” and “continued to shake.”

J.A. 277.     Freiwald then warned Belyea that the authorities could

hold him as a material witness in a D.C. jail, where “a skinny

white boy like [Belyea] wouldn’t last very long.”                J.A. 244.    The

agent suggested that Belyea could avoid D.C. jail by providing

information on the guns.

              Belyea ultimately confessed to Agent Friewald, stating

that he had taken two guns, one revolver and one semi-automatic

handgun, from the hope chest in the Gay bedroom, placed the guns in

a laundry basket, and placed the basket in his car.                    He further

confessed that he, Michelle Gay, and Michelle Gay’s boyfriend at

the   time,    Kevin   Bruther,    drove   to   a   McDonald’s    in    Sterling,

Virginia, where Bruther traded the guns to a white male for drugs.

Belyea renounced this confession at trial, however, claiming that

he had made up most of it.        At trial he highlighted inconsistencies

between his confession and other trial evidence, including that

three guns were stolen, not two, and that they were traded to




                                       3
Bruther’s African-American drug dealer in Washington, D.C., not a

white drug dealer in Sterling, Virginia.

            Belyea was charged with possession of a stolen firearm in

violation of 18 U.S.C. § 922(j) and possession of a firearm by an

unlawful user of a controlled substance in violation of 18 U.S.C.

§ 922(g)(3).    Prior to trial Belyea moved in limine to introduce

expert testimony on factors that correlate with false confessions.

The district court rejected this motion on the ground that the

testimony would not help the jury because “jurors [already] know

people lie.”     J.A. 57.   Because the court concluded only that

testimony about confessions would not assist the jury, it did not

conduct a Daubert analysis on whether such testimony would be

reliable.    The court refused defense counsel’s request to proffer

the proposed testimony, explaining that the record was sufficient

and that Belyea was otherwise free to argue at trial that the

confession was false.    At trial the court denied Belyea’s renewed

motion to admit the expert testimony after the government was

allowed to elicit from Agent Freiwald that he had been trained not

to use coercive interrogation tactics.



                                  B.

            Michelle Gay testified at trial that she was running out

of drugs during the August 2001 party and, needing money to buy

more, decided to cash some of her savings bonds.    These bonds were


                                  4
locked away in her father’s hope chest where his handguns were kept

in their original Smith & Wesson factory boxes.                    When Ms. Gay could

not find the key to the chest, she asked Bruther and Belyea to

break into the chest for her.           Although the two men tried picking

the   lock     and   unscrewing   the      back     hinges,       their    efforts   were

unsuccessful.          Michelle Gay then found the key and retrieved

several bonds.         According to her, “[n]obody touched anything in

[the chest]” except for the bonds, J.A. 163; no one handled or

stole the guns, though the firearms boxes were clearly visible when

she    opened    the    chest.       The    government        introduced       Belyea’s

confession that he took the guns from the hope chest during the

party and that Bruther traded the guns for drugs.

               Throughout    trial   and       in   the    jury    instructions,      the

government and the district court equated the possession element in

Count One, possession of a stolen firearm, with that in Count Two,

possession of a firearm by an unlawful user of a controlled

substance, on the theory that “the act of the possession and the

act of a gun becoming stolen really occur[ed] at the same time.”

J.A. 357.       The court limited the jury instructions on both counts

to    actual    possession    (“to    have      direct      physical       control   over

something,” even if just for a moment), explaining that “if the

jury accepts the confession as accurate, it is a confession to

actual possession and to nothing else.”                   J.A. 293.       The court gave




                                           5
no instruction on constructive or joint possession despite the

government’s request.

              The jury found Belyea not guilty on Count One (possession

of a stolen firearm) but guilty on Count Two (possession of a

firearm by an illegal drug user).            Belyea moved for a new trial on

the basis of newly discovered evidence and the court’s exclusion of

expert testimony on confessions.

              Belyea presented the newly discovered evidence at a post-

trial   hearing.        Four    of    Bruther’s        acquaintances     and    one

investigator from the Federal Public Defender’s Office testified

that Bruther had repeatedly and consistently said that he alone had

stolen the guns from the hope chest in the Gay bedroom and that

Belyea had had “zero involvement” in the theft.                 J.A. 380, 452.

Bruther told one of these witnesses that he had lied to the ATF

when he pinned the gun theft on Belyea because he (Bruther) was

terrified of being sent back to prison, having just been released

on an unrelated charge.         Bruther began making these inculpatory

comments about Belyea in the fall of 2002, months before either he

or   Belyea    was   interviewed     about    the   gun   theft,   and    Bruther

continued making these comments until February 2003, when he

committed suicide (a month before the post-trial hearing).                      His

comments      were   “always   the   same,”     J.A.    451,   with    one     minor

inconsistency:       he inflated the quantity of drugs for which he had




                                       6
traded the guns after being teased by his friends for making a bad

deal.

             According to the newly discovered evidence, the gun theft

did not occur during the August 2001 party when Belyea was in the

Gay house.    Rather, the theft occurred on an entirely separate and

later occasion, perhaps days after the party: Bruther and Michelle

Gay were preparing to drive away from the Gay home when Bruther

(alone) ran back inside, broke into the chest, and stole the guns

without anyone else’s knowledge or participation.             Bruther said he

chose Belyea as his fall guy because he knew that Belyea had a “bad

past,” J.A. 463, had been in the Gay bedroom where the hope chest

was located, and had suggested to Bruther during their unsuccessful

effort at the party to break into the chest that they remove the

hinges rather than pick the lock.

             The district court denied Belyea’s motion for a new trial

on grounds that the new evidence was neither material nor likely to

result in an acquittal at a new trial.             The court concluded that

the “new evidence does not undermine the jury’s verdict that Belyea

possessed    the   firearms   before       they   were   stolen”   --    that   he

“exercised dominion and control over the firearms, at least before

they were removed from the Gay bedroom.”             J.A. 517-18.       The court

thereby invoked the standard for constructive possession, not

actual possession, even though the jury was never instructed on




                                       7
constructive possession. The court also declined to reconsider its

exclusion of expert testimony on the subject of confessions.

            At    sentencing   Belyea      objected    to   the     two-level

enhancement      for   obstruction   of    justice    recommended    in   his

presentence report.      The court nonetheless imposed the enhancement

upon finding that Belyea was “not truthful when he testified.”

J.A. 523.

            Belyea now appeals.



                                     II.

            Belyea first argues that the district court erred by

excluding expert testimony on factors that correlate with false

confessions.      We review for abuse of discretion the district

court’s decision to exclude this testimony.             See, e.g., United

States v. Crisp, 324 F.3d 261, 265 (4th Cir. 2003).                    Expert

testimony is admissible under Rule 702 of the Federal Rules of

Evidence if it involves scientific, technical, or specialized

knowledge that will assist the trier of fact to understand the

evidence or determine a fact in issue.         The testimony must be both

reliable and relevant.      Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 589-92 (1993); see also Kumho Tire Co. v. Carmichael, 526

U.S. 137, 147-49, 152 (1999).             While a trial court has broad

discretion in deciding whether to admit expert testimony, it abuses

this discretion if it makes an arbitrary decision or otherwise


                                      8
makes an error of law.    See United States v. Barile, 286 F.3d 749,

753 (4th Cir. 2002).

           Daubert requires a nuanced, case-by-case analysis of

whether the proposed expert testimony will assist the trier of

fact.   See Daubert, 509 U.S. at 591-92; United States v. Harris,

995 F.2d 532, 534-35 (4th Cir. 1993) (noting pre-Daubert trend of

eschewing per se rules of inadmissibility and instead making

particularized determinations). But see United States v. Prince-

Oyibo, 320 F.3d 494, 500-01 (4th Cir. 2003) (noting that Daubert

requires “nuanced evaluation” of evidence, but upholding per se ban

in limited context of polygraph evidence).           Rather than making

broad   generalizations   about   evidentiary    value,     a    court   must

determine whether expert testimony will help the jury, given the

facts in issue in the particular case.

           The district court failed to make such a particularized

determination here. The court’s essential reason for excluding the

expert testimony on false confessions was that “jurors know people

lie.”    J.A.   57.    This   statement   may   be   true   as    a   general

proposition, but it does not necessarily apply in this case; it

does not mean that jurors know that people confess falsely or that

someone in Belyea’s position may be more likely to do so.              Jurors

may know that people lie in everyday life or even sometimes under

oath, particularly when they believe lying to be advantageous.

Jurors may not know, however, that people lie on occasion to their


                                   9
own detriment by falsely confessing to crimes that they did not

commit.   The phenomenon of false confessions is counter-intuitive

and is not necessarily explained by the general proposition that

“jurors know people lie.”   See Advisory Committee Notes, Fed. R.

Evid. 804(b)(3) (suggesting that statements against interest as

rare); United States v. Smithers, 212 F.3d 306, 315-16 (6th Cir.

2000) (stating that district court was “simply wrong” for assuming

that jurors know to be skeptical of eyewitness testimony when many

factors affecting memory are counter-intuitive, complex, and not

fully known by jurors).

          The court’s explanation here -- that whether a confession

is false is “something juries decide all the time, and I don’t need

an expert to help them in that respect” -- suggests that expert

testimony on false confessions is never admissible. J.A. 56. This

approach is erroneous as a matter of law because it overlooks

Daubert’s general requirement for a particularized determination in

each case.   The court should have inquired into whether jurors

commonly know about false confessions as a particular form of lying

and about specific factors that may correlate to false confessions.

See United States v. Lester, 254 F. Supp. 2d 602, 608 (E.D. Va.

2003) (noting that Rule 702 and Daubert render inadmissible only

testimony on matters obviously within common knowledge of jurors).

The specifics of this case mandate a particularized inquiry:     a

federal agent twice lied to Belyea during his interrogation; Belyea


                                10
was a drug addict, in prison at the time on an unrelated charge,

and admittedly terrified during the interrogation; and Belyea has

suffered      from   clinical     depression    and     behavioral    problems

throughout his life.

              It appears to us that the expert in this case, Dr.

Solomon    Fulero,      would   have   addressed   whether   and     how   these

particular factors correlate to false confessions. Belyea’s motion

in   limine    states    that   “Dr.   Fulero   would   testify    that    false

confessions in fact occur, and that various techniques used by law

enforcement agents, such as false accusations and false promises

can influence a person’s decision to confess falsely.”                J.A. 16.

In addition, Dr. Fulero would apparently testify that “particular

characteristics of the person interrogated, such as . . . anxiety

problems, can affect the likelihood that a confession is false.”

J.A. 16.   The record on appeal is sparse, however, on Dr. Fulero’s

proposed testimony because the district court refused defense

counsel’s request to make a proffer of the testimony. Without more

detailed information, it is impossible to determine whether the

expert testimony would aid the jury in this case.            But the limited

record suggests that the testimony would be helpful by at least

clarifying that some people, contrary to common sense, make false

inculpatory statements.         See United States v. Hall, 93 F.3d 1337,

1343-45 (7th Cir. 1996) (finding abuse of discretion where court

excluded possibly critical expert testimony on personality disorder


                                        11
that made false confessions more likely).                Accord United States v.

Shay, 57 F.3d 126, 133-34 (1st Cir. 1995) (mental disorder).

            The foregoing conclusions require us to remand the case

to the district court for a more complete analysis of whether the

expert    testimony    is     admissible     under      Daubert     and   Rule   702;

specifically, whether it would aid the jury in this case and, if

so, whether it satisfies the Daubert factors for assessing the

reliability    of     expert    scientific        or    professional      testimony.

Daubert, 509 U.S. at 591-95; United States v. Dorsey, 45 F.3d 809,

813 (4th Cir. 1995).           In conducting this analysis, the district

court should take into account any other applicable evidentiary

rules, including Rule 403.           Daubert, 509 U.S. at 595.

            If the district court determines on remand that Dr.

Fulero’s    testimony       should   have    been      admitted,    its    erroneous

exclusion at trial cannot be deemed harmless.                 The government has

not raised the harmlessness issue in this appeal.                    However, nine

other circuits have concluded or at least suggested that appellate

courts may raise the issue of harmlessness sua sponte, depending on

the   length   and    complexity      of    the     record,   the    certainty     of

harmlessness,   and     the     prospect     that      reversal    will   result   in

protracted or futile proceedings.                 See, e.g., United States v.

Gonzales-Flores, 418 F.3d 1093, 1100-01 (9th Cir. 2005) (citing

cases).    Assuming without deciding that our circuit allows the

harmlessness inquiry to be considered sua sponte and that the


                                        12
inquiry is appropriate in this case, we conclude (as we said above)

that if Dr. Fulero’s testimony is admissible, its exclusion was not

harmless.

              Belyea’s confession was crucial to his conviction.             See

J.A. 516 (district court describing confession as “key evidence”

against Belyea).       Indeed, it is the only direct evidence that

Belyea actually possessed the guns -- the theory of possession on

which    he   was   tried   and    convicted.       The    remaining    evidence,

including that Belyea helped in the attempt to pick the lock of the

chest and knew the style of the stolen guns, is far from definitive

on the issue of actual possession.

              Moreover, Belyea was not allowed to introduce potentially

forceful evidence supporting his contention that his confession was

false.    The excluded expert testimony would have explored, among

other factors, characteristics (such as anxiety problems) and

interrogation techniques (such as false accusations) that make

suspects more likely to confess falsely.                  Belyea was of course

still able to challenge the confession at trial, for example by

testifying     that   he    made   up   most   of   it    and   by   highlighting

discrepancies between his confession and the remaining evidence of

the crime.       He was also given leeway to suggest that he was

vulnerable at the time of his interrogation:               he was in prison at

the time, a drug addict, and lied to by the ATF agent.                    But he

could not challenge the confession on a separate and potentially


                                        13
compelling ground.         He could not explain that false confessions,

while counter-intuitive, do in fact occur and are more likely to

occur in certain circumstances, perhaps in the very circumstances

of   his   case.        This   evidence     would     likely    have   altered       the

complexion of the case.         See Smithers, 212 F.3d at 317.

             Given the critical weight of Belyea’s confession, we

cannot say that any error in excluding Dr. Fulero’s testimony on

false confessions was harmless.                See Shay, 57 F.3d at 134.              We

simply     lack   the    requisite   assurance        that     any   error    did    not

“substantially sway[]” the jury’s judgment.                      United States v.

Weaver, 282 F.3d 302, 314 (4th Cir. 2002) (internal quotation marks

and citations omitted).

             If the district court concludes on remand that Dr.

Fulero’s     testimony     should    have      been   admitted,      the     error    of

excluding his testimony would not be harmless, and the court should

enter an order granting a new trial pursuant to Rule 33 of the

Federal Rules of Criminal Procedure.




                                          14
                               III.

          Belyea next argues that the district court erred in

denying his motion for a new trial that was based on newly

discovered statements by Bruther, who said that Belyea did not

participate in or even witness the theft of Ralph Gay’s handguns.

A motion for a new trial based on newly discovered evidence should

be granted only if:      (1) the new evidence is in fact newly

discovered; (2) facts are presented from which the court may infer

due diligence on the part of the movant; (3) the evidence is not

merely cumulative or impeaching; (4) the evidence is material to

the issues involved; and (5) the evidence is “of such a nature that

it would probably result in an acquittal at a new trial.”   United

States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000) (internal

quotation marks and citation omitted); Fed. R. Crim. P. 33.     We

review the district court’s denial of a Rule 33 motion for abuse of

discretion.   United States v. Russell, 221 F.3d 615, 619 (4th Cir.

2000).

          The district court denied Belyea’s motion on grounds that

the new evidence was neither material to the issue of possession,

nor would it probably result in an acquittal at a new trial.

Specifically, the court reasoned that the new evidence does not

undermine the trial evidence supporting Belyea’s conviction on

Count Two (possession of a firearm by a drug user), and for this

reason the new evidence is immaterial to his conviction and would


                                15
not probably result in an acquittal at a new trial.       The court

hinged these conclusions on a theory of constructive possession:

that there was “more than sufficient evidence” at trial to support

a finding that Belyea “exercised dominion and control over the

firearms, at least before they were removed from the Gay bedroom.”

J.A. 516-17.    Cf. United States v. Gallimore, 247 F.3d 134, 137

(4th Cir. 2001) (defining constructive possession). This evidence,

the court said, is undisturbed by Bruther’s newly discovered

statements.    The problem with this reasoning is that the court did

not give a broad instruction on possession, one that covered both

actual and constructive possession and both individual and joint

possession.

          Rather, the court limited the jury instruction on both

counts to actual possession, “to have direct physical control over

something,” on the theory that this is purely “an actual possession

case”; the court’s only elaboration on this instruction was that

“momentary possession is sufficient.”       J.A. 292-94, 339, 342.

Given this limited jury instruction, we must consider whether the

newly discovered evidence undermines Belyea’s conviction for actual

possession of a firearm, not constructive possession.    See United

States v. Brodwin, 292 F. Supp. 2d 484, 494 (S.D.N.Y. 2003) (in

evaluating a motion for a new trial, “the [c]ourt must consider how

[the] evidence was presented in [the actual] trial, and not how it

might be presented in some other trial”).


                                 16
          When examined through the actual possession lens, the

split verdicts -- acquittal on Count One, conviction on Count Two

-- suggest that the jury believed that Belyea actually possessed

the guns in the Gay bedroom, even if just for a moment, before they

were removed from the home.   These jury verdicts belie the court’s

and prosecution’s theory throughout trial that the evidence of

possession for both counts is “obviously the same” and “the act of

possession and the act of the gun becoming stolen really occur at

the same time.”     J.A. 310, 357.       The district court, while

conceding that the verdicts appear inconsistent in light of the

trial theory, nonetheless characterized them as reasonable, and we

do not question this characterization.          See United States v.

Murphy, 35 F.3d 143, 148 (4th Cir. 1994) (“[I]f the evidence

supports different, reasonable interpretations, the jury decides

which interpretation to believe.”)

          We   nevertheless   conclude   that   the   newly   discovered

evidence undermines Belyea’s conviction for actual possession.       It

suggests that Bruther stole the guns on an entirely separate and

later occasion than the occasion described at trial, when Belyea

and Bruther were trying to pick the lock of the hope chest during

the party in an effort to access the bonds within.      Rather, Bruther

may have stolen the guns days or even weeks after the party in an

altogether different scene:   he and Michelle Gay were preparing to




                                 17
drive away from the Gay home when he ran back inside, alone.

According     to   Bruther’s       repeated     and     generally   consistent

admissions, Belyea had “zero involvement” in this theft, “had

nothing to do with it.”         J.A. 452, 462-63.     Bruther only implicated

Belyea to law enforcement on one occasion because he knew that

Belyea had a “bad past” and had been in the Gay bedroom once

(during the incident described at trial), when the two men joined

in an unsuccessful effort to break into the chest and retrieve the

bonds.     J.A. 463.

             By Bruther’s account, Belyea was not even in the Gay

bedroom at the time of the theft; he did not know about or

participate in the theft.            Because the new evidence questions

whether Belyea ever actually (or even constructively) possessed the

guns, it qualifies as being material to the central issue of

possession.

             Moreover, the new evidence would probably result in an

acquittal at a new trial because it so marginalizes and overshadows

the inculpatory evidence that it would likely raise reasonable

doubt in jurors’ minds that Belyea ever possessed the guns.                  For

example, at a new trial Belyea’s admission that he helped Bruther

try   to   break   into   the    hope   chest   would    be   measured   against

Bruther’s repeated admissions that he (Bruther) stole the guns on

a different occasion without any assistance from Belyea.                 The most

damning evidence against Belyea, his knowledge of the type of guns


                                        18
in the chest, would have less significance in light of the new

evidence.   (In any event, Belyea’s general description of the guns

is not so damning when examined in the context of the possession

issue, since it may mean that Belyea saw the guns or gun boxes at

some point but never actually handled the guns;               Michelle Gay

testified that she, Bruther, and Belyea all saw the Smith & Wesson

boxes when she retrieved her bonds at the party.)         Finally, the new

evidence casts serious doubt on the prosecution’s theory that

Belyea and his friends “stole those guns so that they could get

more drugs.”    J.A. 99.

            Because the newly discovered evidence is material and

would probably result in an acquittal at a new trial, we conclude

-- assuming the evidence meets the standard for trustworthiness

(see below) -- that the district court abused its discretion in

denying   Belyea’s   motion   for   a   new   trial   based   on   the   newly

discovered statements by Bruther.

            The government argues on appeal that we should affirm the

district court’s denial in any case because the new evidence,

exculpatory statements against interest made by an unavailable

declarant, is not admissible under Rule 804(b)(3) of the Federal

Rules of Evidence.    We are unable to address this argument on the

present record because the district court did not reach the issue

of whether “the corroborating circumstances clearly indicate the

trustworthiness” of Bruther’s statements. Fed. R. Evid. 804(b)(3);


                                    19
see J.A. 490 (finding witnesses who recounted Belyea’s statements

“completely credible” and expressing “no doubt” that Bruther made

statements, but declining to rule on whether statements themselves

were true).    The district court must address this issue in the

first instance on remand.

            If the district court concludes on remand that the newly

discovered evidence is admissible under Rule 804(b)(3), it should

enter an order granting a new trial pursuant to Rule 33 of the

Federal Rules of Criminal Procedure.



                                 IV.

            We remand the case to the district court for proceedings

consistent with this opinion.      We retain jurisdiction over the

appeal so that we may review the district court’s orders on remand

with regard to the admissibility of Dr. Fulero’s expert testimony

and Bruther’s newly discovered statements.     In the meantime, we

hold in abeyance the issue relating to Belyea’s challenge to his

sentence.



                                         REMANDED WITH INSTRUCTIONS




                                 20
