                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              OCT 29 2013

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

UNITED STATES OF AMERICA,                        No. 12-30342

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00035-RFC-1

  v.
                                                 MEMORANDUM*
ALEX MEDICINE HORSE, Jr.,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                      Argued and Submitted October 10, 2013
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Defendant-Appellant Alex Medicine Horse, Jr. appeals his conviction for

aggravated sexual abuse under 18 U.S.C. §§ 1153 and 2241(c). Medicine Horse

contends that the district court erred when it denied: (i) his motion to suppress a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
recorded statement he made to the FBI after failing a polygraph test; and (ii) his

motion in limine seeking to preclude several witnesses from testifying about other

allegations of sexual abuse. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.1

                                          I

      Medicine Horse contends that his post-polygraph statements were

involuntary, and were made in violation of his rights under Miranda, the Fifth

Amendment, and the Sixth Amendment. To determine whether a statement was

voluntary, we review the “totality of the circumstances” to determine “whether the

defendant’s will was overborne.” United States v. Crawford, 372 F.3d 1048, 1060

(9th Cir. 2004) (en banc). Here, the record demonstrates that Medicine Horse had

extensive experience in law enforcement, was 67 years old, had a GED, and the

interview was relatively brief. Medicine Horse did not suggest that he had any

mental health issues and understood that he could terminate the interview.

Although he did indicate that he had some physical health issues and the FBI agent

may have accused him of lying, those circumstances were not so egregious such

that they would have caused Medicine Horse to falsely confess.



      1
        Because the parties are familiar with the history of the case, we repeat only
those facts necessary to explain our decision.

                                          2
      Similarly, Medicine Horse was not in custody and accordingly, his Miranda

rights did not attach. See Dyer v. Hornbeck, 706 F.3d 1134, 1138 (9th Cir. 2013).

Indeed, Medicine Horse voluntarily agreed to participate in the polygraph session,

he traveled to the station on his own, the interview was relatively brief, and he was

allowed to leave afterward. Additionally, because Medicine Horse had not been

formally charged, his Sixth Amendment right to counsel had not attached. See

United States v. Charley, 396 F.3d 1074, 1082 (9th Cir. 2005).

                                          II

      Medicine Horse contends that the district court erred by permitting several

witnesses to testify about other allegations of sexual abuse, contending that they

were dissimilar to the charged conduct, remote in time, or cumulative of other

evidence. Federal Rule of Evidence 414 establishes “a presumption – but not ‘a

blank check’ – favoring the admission of propensity evidence at both civil and

criminal trials involving charges of sexual misconduct.” United States v. Sioux,

362 F.3d 1241, 1244 (9th Cir. 2004). In light of the “inherent strength” of Rule

414 evidence, we have indicated that district courts must carefully weigh its

probative value against its prejudicial effect using a number of factors to determine

admissibility under Rule 403. United States v. LeMay, 260 F.3d 1018, 1027-28

(9th Cir. 2001).

                                          3
      Here, the district court applied the LeMay factors and allowed the

government to introduce the evidence concerning alleged incidents involving

children who were in a similar age range, were siblings, and were related by

marriage to Medicine Horse. The testimony was not cumulative and was necessary

to bolster the victim’s sparse testimony, which was subject to charges of

fabrication. The evidence also showed that the incidents were not isolated events

and there did not appear to be any relevant intervening circumstances. Although

two of the witnesses testified concerning incidents that occurred 45 to 50 years

prior to trial, there is no “bright line rule” precluding evidence that is remote in

time. See United States v. Rude, 88 F.3d 1538, 1550 (9th Cir. 1996). Here, in light

of the similarities between the incidents and the district court’s assessment of the

other factors, we cannot say that the court abused its discretion by admitting the

testimony. See United States v. Wahchumwah, 710 F.3d 862, 866 (9th Cir. 2013).

      AFFIRMED.




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