                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 29 2010

                                                                       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. 09-10018

             Plaintiff - Appellee,               D.C. No. 2:08-CR-00103-SMM-1

  v.
                                                 MEMORANDUM *
STUART W. EASCHIEF,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Stephen M. McNamee, District Judge, Presiding

                      Argued and Submitted January 11, 2010
                            San Francisco, California

Before: WALLACE, HUG and CLIFTON, Circuit Judges.

       Stuart Easchief appeals from his conviction under 18 U.S.C. §§ 81 and 1153

for committing arson within Indian country. We affirm.

       Whether or not Easchief was in custody when he confessed to enkindling his

home, he was not subjected to interrogation. The EMT’s question about what was



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
going on was not interrogation because there was no reason that the EMT should

have known that the query was “reasonably likely to elicit an incriminating

response.” Rhode Island v. Innis, 446 U.S. 291, 302 (1980). The EMT was

evaluating whether Easchief was disoriented, and Easchief had previously

answered similar questions without incriminating himself.

      We need not decide whether the EMT’s follow-up question, “why?” was

custodial interrogation. In light of the other evidence of Easchief’s motive and

guilt, including his statement to a neighbor that he had torn up the house because

he was upset with his wife and his response to the EMT’s initial question, we are

convinced beyond a reasonable doubt that the admission of Easchief’s response to

the follow-up question was harmless even if it was erroneous. See Chapman v.

California, 386 U.S. 18, 24 (1967).

      The district court did not abuse its discretion by denying Easchief’s motion

to hold a Daubert hearing before allowing the government’s expert witness to

testify. Easchief made nothing but conclusory assertions of unreliability in his

motion, and added nothing during the hearing concerning that motion. Since there

was no serious dispute about either the expert’s qualifications or the validity of her

methodology, the district court correctly declined to hold “unnecessary ‘reliability’

proceedings” in this ordinary case where the reliability of the expert’s methods was


                                           2
“properly taken for granted.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999).

      It appears that the lack of a material dispute also distinguishes this case from

United States v. Jawara, 474 F.3d 565, 582–83 (9th Cir. 2007), and Elsayed

Mukhtar v. California State University, 299 F.3d 1053, 1064 (9th Cir. 2002). But

even if an explicit finding of reliability by the district court was required, its

omission was harmless. See Jawara, 474 F.3d at 583.

      The government’s expert’s testimony about her confidence in her opinion

was an invited response to Easchief’s cross-examination, and the district court

correctly allowed it, particularly in the absence of an objection, a motion to strike,

or any attempt to attack the statement during recross-examination. See United

States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995). Easchief’s argument that the

district court refused to allow the defense’s expert to assess the propriety of the

government’s expert’s confidence in her opinion is baseless. Easchief’s attorney

asked a leading question, the district court correctly sustained the government’s

objection to the form of the question, and Easchief’s counsel moved on. There was

no refusal.

      The government’s expert’s testimony that the fire was set intentionally did

not, more likely than not, materially affect the verdict, so even assuming that


                                            3
Easchief preserved his objection, any error in the admission of the testimony was

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

Given Easchief’s own statements about how the fire started, the expert’s testimony

concerning intent was unnecessary to the verdict. Easchief argues that the

admission of this testimony materially affected the verdict because the jury might

have otherwise found that Easchief’s disorientation at the scene rendered his

confession unreliable. But Easchief’s false statements concerning his identity and

whether his children were inside the burning home are as probative of an intent to

deflect blame as they are of disorientation.

         Easchief’s remaining arguments are also unpersuasive. We do not conclude

that the government engaged in prosecutorial misconduct, but even if it did, the

weight of the evidence against Easchief precludes reversal under the plain error

standard. See United States v. Romero-Avila, 210 F.3d 1017, 1021–22 (9th Cir.

2000). Finally, as Easchief acknowledges, his argument concerning jury

instructions is foreclosed by United States v. Doe, 136 F.3d 631, 635 (9th Cir.

1998).

         AFFIRMED.




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