                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 22 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-30028

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00019-SEH-1

  v.
                                                 MEMORANDUM *
ELWYN FLOYD HAS THE EAGLE, JR.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted January 10, 2011
                                Seattle, Washington

Before: GRABER and M. SMITH, Circuit Judges, and BENITEZ,** District
        Judge.

       Defendant Elwyn Floyd Has The Eagle, Jr., timely appeals his convictions

for first-degree murder, second-degree murder, two counts of felony murder, and

burglary. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Reviewing the district court’s evidentiary rulings for abuse of discretion,

United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010), we hold that

the district court acted within the discretion vested in it by Federal Rule of

Evidence 702 when the court reasonably concluded that Defendant’s expert, a

social worker without any medical training, could not testify reliably about

Defendant’s medications or the effects of those medications on Defendant. See

United States v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000) (holding that the

admissibility of expert testimony is "‘a subject peculiarly within the sound

discretion of the trial judge, who alone must decide the qualifications of the expert

on a given subject and the extent to which his opinions may be required’" (quoting

Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968))). And, because the

expert could testify reliably about some things but not others, the district court

reasonably concluded that it could not give Defendant blanket permission to ask

the expert whatever Defendant wanted to ask. We see no error in the district

court’s handling of Defendant’s expert evidence.

      We assume, without deciding, that the district court erred when it prohibited

Defendant’s expert from testifying about statements that Defendant had made to

the expert regarding the reported effects of Defendant’s medications. Even under




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that assumption, the error was harmless because the statements had little, if any,

probative value. United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

      Reviewing de novo, United States v. Pineda-Doval, 614 F.3d 1019, 1032

(9th Cir. 2010), we reject Defendant’s assertion that the district court deprived

Defendant of his constitutional right to present a defense. As none of the excluded

evidence would have added substantially to the jury’s knowledge, we find no

constitutional violation. United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th

Cir. 1992).

      Reviewing de novo, United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir.

2010), we hold that the district court correctly denied Defendant’s motion under

Federal Rule of Criminal Procedure 29 regarding the felony murder charges.

Viewing the evidence in the light most favorable to the government, a reasonable

juror could conclude that Defendant intended to take the victims’ car at the time he

entered their house. See United States v. Alarcon-Simi, 300 F.3d 1172, 1176 (9th

Cir. 2002) ("In ruling on a Rule 29 motion, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt." (internal quotation marks omitted)). The jury had enough

evidence to convict Defendant on the two felony murder charges.

      AFFIRMED.

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