United States v. Hernandez

104 F.4th 755

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 7, 2024
• Docket: 23-7024
• Status: Published

Opinion

Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 7, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ____________________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-7024

JOSEPH ALLEN HERNANDEZ,

Defendant - Appellant. ___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 6:21-CR-00096-CBG-1) ____________________________________________

Stuart W. Southerland, Assistant Federal Public Defender (Scott A. Graham, Interim Federal Public Defender, and Robert Ridenour, Assistant Federal Public Defender, with him on the briefs), of the Office of the Federal Public Defender, Eastern District of Oklahoma, Muskogee, Oklahoma, for Defendant-Appellant.

Jarrod Leaman, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the briefs), of the Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee. _______________________________________________

Before BACHARACH, BALDOCK, and KELLY, Circuit Judges. ________________________________________________

BACHARACH, Circuit Judge. ________________________________________________ Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 2

This case arises from an investigation into a mobile home fire that

led to two deaths. The government accused Mr. Joseph Allen Hernandez of

intentionally setting the fire and supported the accusations with expert

testimony by a fire investigator. For that expert testimony, the investigator

entered the scene and examined it, took photographs, and interviewed

witnesses.

During this investigation, Mr. Hernandez said that he had

accidentally started the fire. At trial, the fire investigator was asked about

this explanation; he expressed disbelief.

The trial resulted in convictions on

 two counts of second-degree murder in Indian Country and

 one count of arson in Indian Country.

We consider three issues:

1. Whether the district court abused its discretion in allowing the fire investigator to give expert testimony?

2. Whether the district court erred by allowing the fire investigator to testify that he hadn’t believed Mr. Hernandez’s explanation?

3. Whether the fire investigator’s entry onto the scene intruded on a reasonable expectation of privacy?

We answer no to each question.

1. The fire kills Mr. Hernandez’s mother and grandmother.

The case began with the arrival of emergency responders as a fire

engulfed a mobile home. Mr. Hernandez’s mother and grandmother were in

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the mobile home and suffered severe burns. Mr. Hernandez’s mother told

emergency responders that her son, Mr. Hernandez, had doused her with

gasoline and lit her on fire. Mr. Hernandez’s grandmother similarly told

emergency responders that her grandson had poured gasoline on her and lit

both women on fire. Both women later died from their injuries.

Mr. Hernandez was burned, too, and told an emergency responder: “I

was mad, and I shouldn’t have done it. Just help me.” R. vol. 3, at 403–04.

But he then gave a different explanation to the police, saying that he had

been smoking and “messing” with a gasoline can when it exploded. Id. at

385.

2. A fire investigator studies the fire’s cause and origin.

A fire investigator (Mr. Gene Wheat) soon arrived and talked to

police and Mr. Hernandez, who said “that he had been cleaning with some

gasoline and smoking a cigarette and it had ignited.” R. vol. 3, at 522.

Mr. Wheat then

 spoke to other eyewitnesses,

 diagrammed the locations of Mr. Hernandez’s mother and grandmother, and

 spotted other potential ignition sources, including the grandmother’s wheelchair and a lawn mower.

But Mr. Wheat couldn’t enter the mobile home because of the fire. So

he returned the next morning, photographing the scene and analyzing it for

evidence of the fire’s origin. 3 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 4

3. The district court didn’t err in allowing the fire investigator’s expert testimony.

Before trial, the government presented Mr. Wheat as an expert

witness to testify about the fire’s “cause and origin.” Mr. Hernandez

moved to exclude this testimony as unreliable. The district court ultimately

allowed Mr. Wheat to testify as an expert witness, and Mr. Hernandez

challenges this ruling.

3.1 We apply the abuse-of-discretion standard to the district court’s decision to allow Mr. Wheat’s expert testimony.

The district court has wide discretion to admit or exclude expert

testimony. Hall v. Conoco Inc., 886 F.3d 1308, 1311 (10th Cir. 2018). In

exercising this discretion, the court must determine whether the proposed

testimony is reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

589 (1993). This determination includes the scientific validity of “the

reasoning and methodology underlying the expert’s opinion.” Goebel v.

Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003).

And on the ultimate question of admissibility, the district court must

consider the requirements of Federal Rule of Evidence 702. This rule

allows expert testimony only if it

 would help the fact-finder understand the evidence,

 is “based on sufficient facts or data,”

 results from reliable principles and methods, and

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 rests on a reasonable application of principles and methods to the facts of the case.

Fed. R. Evid. 702.

In considering the district court’s application of these requirements,

we apply the abuse-of-discretion standard. Hall, 886 F.3d at 1311; Goebel,

346 F.3d at 990. We reverse only if the district court’s assessment of

reliability or admissibility

 was arbitrary, capricious, whimsical, or manifestly unreasonable or

 showed a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.

United States v. Foust, 989 F.3d 842, 845 (10th Cir. 2021).

3.2 Mr. Hernandez doesn’t dispute Mr. Wheat’s three opinions allowed into evidence.

The district court permitted Mr. Wheat to testify about three

opinions:

1. The fire had originated in the mobile home near the breezeway.

2. The fire had likely been caused by the ignition of an accelerant (ignitable liquid).

3. It is difficult to light gasoline with a cigarette.

R. vol. 1, at 221–26. 1

1 Mr. Wheat also opined that

 the fire had originated from the bodies of both the mother and grandmother and

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In his briefs, Mr. Hernandez doesn’t say which opinions should have

been excluded. When questioned at oral argument, Mr. Hernandez

conceded that he didn’t dispute any of the three opinions. Oral Argument

at 13:12–16:12. Given this concession, Mr. Hernandez has apparently

waived his challenge to the district court’s rulings on reliability and

admissibility.

3.3 The district court could reasonably find adequate compliance with the NFPA 921 guidelines.

Even if this concession hadn’t waived Mr. Hernandez’s evidentiary

challenge, we would reject it.

Mr. Hernandez argues that the district court should have excluded

Mr. Wheat’s testimony because it had deviated from the National Fire

Protection Association’s 921 guidelines. These guidelines set professional

standards for fire investigations. Nat’l Fire Prot. Ass’n, NFPA 921: Guide

 the separate points of origin had indicated that the fire was likely not accidental.

The district court excluded testimony about these opinions, and their admissibility is not at issue.

But Mr. Hernandez argues that these opinions conflicted with Mr. Wheat’s opinion that the fire had only a single point of origin. For this argument, the district court concluded that irrespective of a potential inconsistency, Mr. Wheat could reliably opine that the fire had a single point of origin. We discuss the reliability of that testimony in Part 3.3. In any event, Mr. Hernandez’s explanation for the fire also involved a single point of origin. See p. 10 n.4, below.

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for Fire and Explosion Investigations (2017 ed.). 2 Other courts have

“consistently accepted [the NFPA 921 guidelines] as a suitable foundation

for fire investigation testimony.” Elosu v. Middlefork Ranch Inc., 26 F.4th

1017, 1029 (9th Cir. 2022).

These guidelines provide flexible recommendations, not strict

requirements. See Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire &

Explosion Investigations §§ 18.1, 19.1 (2017 ed.) (“recommend[ing] a

methodology to follow in determining the origin [and cause] of a fire”); id.

§ 18.2.5 (“This recommended methodology serves to inform the

investigator but is not meant to limit the origin determination to only this

procedure.”). That flexibility is apparent throughout the guidelines. See,

e.g., id. § 18.1.2 (stating that the origin should be determined based on

“one or more” of four mechanisms); id. §§ 18.2.2, 19.2.2 (stating that

investigators can simultaneously perform various tasks); id. § 18.3.2.4.4

(allowing investigators to remove items from the scene or leave them

where they are).

The district court could reasonably conclude that Mr. Wheat had

followed the guidelines because he

 had appropriately relied on witness statements,

 had sought evidence bearing on those statements, and

2 Mr. Wheat testified that when the fire took place, the 2017 edition had been in effect. R. vol. 3, at 138.

7 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 8

 hadn’t ignored important facts.

Mr. Wheat began investigating by interviewing witnesses, including

the victims and Mr. Hernandez himself. Both victims stated that

Mr. Hernandez had doused them with gasoline and lit them on fire.

Mr. Hernandez faults Mr. Wheat for starting with witness statements,

arguing that he strayed from the scientific method. For this argument,

Mr. Hernandez points to the guideline’s admonition to avoid expectation

bias, described as a fire investigator’s arrival at a conclusion before

considering all the relevant data. Nat’l Fire Prot. Ass’n, NFPA 921: Guide

for Fire and Explosion Investigations § 4.3.8–9 (2017 ed.).

In addressing this argument of expectation bias, the district court had

to exercise its discretion based on the contentions and information

presented. See United States v. Herrera, 51 F.4th 1226, 1277 (10th Cir.

2022) (stating that “we evaluate the district court’s exercise of discretion

based on the information presented at the time of the ruling”). That

information included Mr. Hernandez’s motion to exclude the testimony,

which contained no mention of expectation bias.

In the hearing itself, the defense’s expert witness did testify that

 investigators risk expectation bias when they start by talking to witnesses and

 Mr. Wheat had apparently “relied totally” on Mr. Hernandez’s criminal history.

8 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 9

R. vol. 3, at 241–42. Ultimately, however, the defense expert said only that

Mr. Wheat “may” have harbored an expectation bias by talking to

witnesses and considering Mr. Hernandez’s criminal history. Id. at 242,

244. 3 The defense expert didn’t testify that Mr. Wheat had actually

harbored expectation bias.

Given what had been presented, the district court could reasonably

exercise its discretion to allow Mr. Wheat’s opinion testimony. After all,

Mr. Hernandez didn’t even allege expectation bias in his motion. Granted,

his expert witness expressed an opinion that fire investigators shouldn’t

start with witness statements. But the guidelines themselves don’t prohibit

investigators from starting with witness statements; the guidelines say only

that fire investigators should wait until after they have reviewed all the

data before reaching conclusions. See Parisa Dehghani-Taffi & Paul

Bieber, Folklore and Forensics: The Challenges of Arson Investigation and

Innocence Claims, 119 W. Va. L. Rev. 549, 586 (2016) (“Although NFPA

921 mentions . . . expectation . . . bias and warns the investigator to avoid

presumption, nothing is said to assist the investigator in recognizing the

factors that contribute to the bias or the safeguards designed to prevent

3 In a reply brief, Mr. Hernandez also suggests that questioning Mr. Wheat about his reliance on criminal history would create unfair prejudice. But this suggestion didn’t appear in Mr. Hernandez’s opening brief. Making this suggestion in the reply brief was too late. United States v. Hunter, 739 F.3d 492, 495 (10th Cir. 2013).

9 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 10

it.”). And there’s no evidence that Mr. Wheat reached any conclusions

before he finished analyzing the data. 4

Mr. Wheat did start by talking to witnesses, including Mr. Hernandez

himself. But the NFPA 921 guidelines highlight the importance of witness

statements:

 “Witness statements, the investigator’s expertise, and fire- fighting procedures play important roles in the determination of the fire origin.” Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and Explosion Investigations § 18.2.5 (2017 ed.).

 “Observations by witnesses are data that can be used in the context of determining the origin. Such witnesses can provide knowledge of conditions prior to, during, and after the fire event.” Id. § 18.3.3.15.

 “Information should be sought from persons having knowledge (such as occupants) about recent activities in the area of origin and what fuel items should or should not have been present.” Id. § 19.3.1.6.

The NFPA 921 guidelines thus don’t prohibit fire investigators from

starting with witness statements. See, e.g., id. §§ 18.2.2, 19.2.2 (stating

that a fire investigator can interview witnesses while conducting other

analyses). So the district court could reasonably reject criticism of

Mr. Wheat’s decision to start with witness interviews.

4 In the district court’s oral argument, Mr. Hernandez asserted only that Mr. Wheat had concluded on the first day that the fire started in one place. Mr. Hernandez’s explanation for the fire would also have involved a single point of origin.

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Mr. Hernandez claims that even apart from the timing, Mr. Wheat

relied too heavily on witness interviews. For example, Mr. Hernandez

points to Mr. Wheat’s admission that he relied in part on where the

witnesses had been when they saw one of the victims. But the guidelines

say that “[i]n some instances, a single item, such as . . . a credible

eyewitness to the ignition, . . . may be the basis for a determination of

origin [or cause].” Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and

Explosion Investigations §§ 18.2.1.2, 19.2.1 (2017 ed.); see also id.

§ 18.8.3 (stating that when “determination of the fire’s cause [is] very

difficult, or impossible . . . a witness may be found who saw the fire in its

incipient stage and can provide the investigator with an area of fire

origin”). The guidelines thus underscore the importance of witness

interviews, “instruct[ing] fire investigators to rely on the observations of

witnesses and property owners when determining the origin and cause of a

fire.” Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1028 (9th Cir. 2022).

Given this instruction in the guidelines themselves, the district court didn’t

exceed its discretion by allowing Mr. Wheat to rely in part on the witness

statements.

Moreover, Mr. Wheat didn’t rely on witness statements alone. The

guidelines require fire investigators to “conduct as thorough an

investigation as possible to collect data that can support or refute the

witness statements.” Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and

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Explosion Investigations § 18.3.3.15 (2017 ed.). For this investigation, the

NFPA 921 guidelines also recommend consideration of

 fire patterns,

 fire dynamics,

 arc mapping,

 fire damage,

 fuel systems, and

 electrical systems.

Id. § 18.1.2 (2017 ed.) (fire patterns, fire dynamics, and arc mapping); id.

§ 18.3.1.5.2 (fire damage); id. § 18.3.3.4 (fuel systems and electrical

systems); id. § 18.3.3.6 (electrical systems).

Mr. Wheat examined all these sources of information except arc

mapping. 5 Mr. Hernandez’s expert witness criticized that omission,

testifying that arc mapping is “industry standard.” R. vol. 3, at 248. But

Mr. Wheat explained that fire investigators don’t usually use arc mapping

for fires in Eastern Oklahoma. And Mr. Hernandez didn’t tell the district

court how arc mapping could have affected Mr. Wheat’s three opinions

allowed into evidence. Cf. Parisa Dehgani-Taffi & Paul Bieber, Folklore

5 “Arc mapping is a technique in which the investigator uses the identification of locations of electrical arcing to help determine the area of origin.” Int’l Ass’n of Fire Chiefs, Fire Investigator: Principles and Practice to NFPA 921 and 1033 263 (4th ed. 2016).

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and Forensics: The Challenges of Arson Investigation and Innocence

Claims, 119 W. Va. L. Rev. 549, 560 (2016) (stating that no published

research exists on the ability to identify a fire’s point of origin based on

arc mapping).

In similar cases, the Eighth Circuit has upheld characterization of

expert testimony as sufficiently reliable when based on witness interviews,

examination of the scene, and identification of areas of origin. See Manuel

v. MDOW Ins. Co., 791 F.3d 838, 846 (8th Cir. 2015) (fire investigator

examined the site and spoke with witnesses); Russell v. Whirlpool Corp.,

702 F.3d 450, 457–58 (8th Cir. 2012) (fire investigator didn’t conduct arc-

mapping but did interview the homeowner, document the scene, examine

burn patterns, and identify the area of origin); Hickerson v. Pride Mobility

Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006) (fire investigator

considered burn patterns and identified a point of origin). The district

court could reasonably rely on Mr. Wheat’s investigation as reliable, too.

Despite Mr. Wheat’s consideration of fire patterns, fire dynamics,

fire damage, fuel systems, and electrical systems, Mr. Hernandez alleges a

failure to

 investigate a witness’s description of a loud noise,

 examine Mr. Hernandez’s burns,

 diagram all potential ignition sources,

 collect a gasoline can at the scene, 13 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 14

 create a log for photographs or take measurements,

 consider the possibility of gasoline vapor as a cause,

 locate an ignition source that might fit Mr. Wheat’s explanation, and

 preserve the scene.

Mr. Hernandez never mentioned these alleged deficiencies in his

motion to exclude the testimony. Granted, he did question Mr. Wheat about

the failure to collect a gasoline can, the failure to diagram other ignition

sources, the possibility of gasoline vapor as a cause, and the lack of an

ignition source for the accelerant. E.g., R. vol. 3, at 194 (failure to collect

gasoline can); id. at 205 (failure to diagram other heat sources); id. at 207–

08 (failure to collect weather data in connection with the potential of

gasoline vapor as a cause); id. at 174 (failure to find an ignition source for

the accelerant). Mr. Hernandez’s expert witness also testified about some

of these matters. Id. at 243–44 (testifying that expectation bias may have

“blinded” Mr. Wheat to the potential impact of gasoline vapor in the air);

id. at 247 (testifying that Mr. Wheat had violated the guidelines by failing

to evaluate other sources of ignition); id. at 249 (testifying that Mr. Wheat

had neglected to preserve the scene). And Mr. Hernandez mentioned some

of the alleged deficiencies in his argument to the district court. Id. at 274

(failure to preserve the scene); id. at 275 (failure to make a photo log or

take measurements); id. at 276 (failure to diagram other ignition sources). 14 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 15

But Mr. Wheat explained several of these alleged lapses. For

example, he explained that he had photographed the gasoline can and left it

at the scene. The district court could credit this explanation because the

guidelines allow investigators to decide whether to remove items from the

scene. Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and Explosion

Investigations § 18.3.2.4.4 (2017 ed.).

Mr. Hernandez also criticized Mr. Wheat for failing to find an

ignition source for his theory involving an accelerant. But Mr. Hernandez

doesn’t explain how the failure to find an ignition source would have

violated the guidelines.

Granted, Mr. Wheat didn’t diagram other ignition sources and

Mr. Hernandez criticizes this omission. The guidelines do recommend

identification of fuels present in the building or the area of interest. Nat’l

Fire Prot. Ass’n, NFPA 921: Guide for Fire and Explosion Investigations

§ 18.3.3.2 (2017 ed.). But Mr. Wheat explained that these sources had been

too far from the point of origin to serve as a realistic ignition source. R.

vol. 3, at 204–05. So the district court could reasonably conclude that

Mr. Wheat hadn’t violated the guidelines by failing to diagram other

ignition sources. See Hickerson v. Pride Mobility Prods. Corp., 470 F.3d

1252, 1257 (8th Cir. 2006) (upholding introduction of testimony by an

expert witness who had failed to note other appliances outside “the area of

origin”).

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Mr. Hernandez also criticizes Mr. Wheat for failing to consider the

weather conditions and the possible vaporizing effect on gasoline. But the

guidelines recommend consideration of weather factors only if they could

have influenced the fire. Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire

and Explosion Investigations § 18.3.3.5 (2017 ed.). And Mr. Wheat

explained that there was no reason to think that the weather had

contributed to the fire.

Mr. Wheat acknowledged some deviations from the guidelines.

R. vol. 3, at 183 (acknowledging a failure to maintain the fire scene); id. at

184–85 (acknowledging the lack of a photo log); id. at 189 (acknowledging

a lack of measurements recommended in the guidelines). But

Mr. Hernandez doesn’t explain how these deviations could have affected

Mr. Wheat’s three opinions allowed into evidence.

Finally, Mr. Hernandez presented his own expert witness to testify

about these alleged deviations from the guidelines. But he conceded that

 he had never heard of a cigarette igniting gasoline,

 he didn’t know of any evidence refuting the victims’ statements about the fire’s origin, and

 Mr. Hernandez’s explanation for the fire wouldn’t explain the accelerant found on the mother’s body.

These concessions support the reliability of Mr. Wheat’s investigation.

Despite his own expert witness’s concessions, Mr. Hernandez relies

on 16 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 17

 Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530 SMV/KRS, 2019 WL 3070588 (D.N.M. July 12, 2019),

 Bryte ex rel. Bryte v. American Household, Inc., 429 F.3d 469 (4th Cir. 2005), and

 Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000).

These cases don’t suggest an abuse of discretion here.

In Philmar Dairy, the district court excluded the fire investigator’s

testimony. 2019 WL 3070588, at *10. But this ruling doesn’t mean that the

court would have erred if it had allowed the expert testimony. Melton v.

Deere & Co., 887 F.2d 1241, 1245 (5th Cir. 1989).

In Bryte, the Fourth Circuit upheld exclusion of expert testimony

under the abuse-of-discretion standard. Bryte, 429 F.3d at 478. But “the

idea of discretion necessarily means that the court has room to decide the

issue either way without committing error.” Melton, 887 F.2d at 1245.

And Pride involved an investigator’s methods for testing a

manufacturing defect where there weren’t any witnesses. Pride v. BIC

Corp., 218 F.3d at 578 (6th Cir. 2000). That case didn’t involve a fire

investigation or the NFPA 921 guidelines.

Given these differences, the three cases don’t affect the

reasonableness of the district court’s consideration of Mr. Wheat’s

investigation: He based his conclusions on witness statements and

examined the physical evidence bearing on the cause and origin of the fire.

Though he deviated in some respects from the guidelines, Mr. Hernandez 17 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 18

didn’t flag these deviations in the motion filed in district court. And even

now, Mr. Hernandez doesn’t explain how these deviations would have

affected the three opinions allowed into evidence. Based on what had been

presented, the district court acted within its discretion by allowing the

expert testimony despite some deviations from the NFPA 921 guidelines.

4. The alleged failure to sua sponte strike the response to a question didn’t affect Mr. Hernandez’s substantial rights.

Mr. Hernandez also lasers in on Mr. Wheat’s response to a question

from defense counsel. The question involved possible corroboration of

Mr. Hernandez’s explanation for the fire; Mr. Wheat responded that he

didn’t believe that explanation because he had never seen a cigarette ignite

gasoline:

Mr. Hernandez: So [Mr. Hernandez’s grandmother] might have been sitting right there alongside [Mr. Hernandez’s mother] whenever this gasoline exploded. True?

Mr. Wheat: That could be a possibility.

Mr. Hernandez: Thank you, sir. And wouldn’t that kind of corroborate what Mr. Hernandez said about he was working with gasoline, and it exploded while he had a cigarette?

Mr. Wheat: I didn’t believe Mr. Hernandez when he told me he had a—gasoline and a cigarette and had an explosion.

Mr. Hernandez: Okay. Because you’re a human lie detector; right?

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Mr. Wheat: No sir. I—I’m aware that gasoline doesn’t start.

R. vol. 3, at 604 (emphasis added).

Mr. Hernandez argues that the district court should have sua sponte

stricken Mr. Wheat’s response (“I didn’t believe Mr. Hernandez when he

told me he had a—gasoline and a cigarette and had an explosion.”).

According to Mr. Hernandez, this response constituted improper testimony

about his credibility.

4.1 We review for plain error.

Mr. Hernandez acknowledges that he didn’t object to Mr. Wheat’s

response. Because Mr. Hernandez didn’t object, he must satisfy the plain-

error standard. United States v. Rosales-Miranda, 755 F.3d 1253, 1257

(10th Cir. 2014). 6 Under this standard, Mr. Hernandez must make four

showings:

1. The district court committed error.

2. The error is clear or obvious under current law.

3. The error affected a substantial right.

4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

6 The government argues that defense counsel invited the alleged error by asking Mr. Wheat if he believed that certain evidence could have corroborated Mr. Hernandez’s explanation for the fire. We assume for the sake of argument that Mr. Hernandez’s attorney didn’t invite the alleged error.

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United States v. Griffith, 65 F.4th 1216, 1218 (10th Cir. 2023), cert.

denied, No. 23-5105, 2024 WL 1143722 (U.S. Mar. 18, 2024).

At oral argument, the government conceded the first and fourth

showings (that the district court had erred and this error had seriously

affected the fairness, integrity, or public reputation of judicial

proceedings). We can assume for the sake of argument that Mr. Hernandez

also made the second showing (an obvious error). With that assumption, we

must determine whether Mr. Hernandez has shown an effect on a

substantial right. See id.

4.2 The response didn’t affect Mr. Hernandez’s substantial rights. 7

The required showing involves “a reasonable probability that but for

the error claimed, the result of the proceeding would have been different.”

Id. (quoting United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th

Cir. 2005)). To predict the probability of a different outcome, we consider

four factors:

1. The strength of the parties’ cases

2. Whether the improper evidence affected the parties’ theory of the case

7 Mr. Hernandez also challenges the admissibility of Mr. Wheat’s response on the ground that it was an “evidentiary harpoon.” We need not address this argument in light of the discussion in the text: Even if the response had constituted an “evidentiary harpoon,” the error wouldn’t have affected Mr. Hernandez’s substantial rights. See United States v. Hooks, 780 F.2d 1526, 1535 n.3 (10th Cir. 1986) (stating that “if no objection is interposed at trial [to an evidentiary harpoon], . . . reversal is only warranted upon a finding of plain error affecting substantial rights”). 20 Appellate Case: 23-7024 Document: 010111061975 Date Filed: 06/07/2024 Page: 21

3. The extent that the parties emphasized the improper opinion testimony

4. Whether the jurors had their own opportunity to assess the defendant’s credibility

Id.

4.2.1 The government’s case was strong, and the response did not undermine Mr. Hernandez’s theory of the case.

Unrelated to Mr. Wheat’s response were two strong pieces of

evidence:

1. The dying declarations of the two victims (Mr. Hernandez’s mother and grandmother), who told emergency responders that Mr. Hernandez had thrown gasoline on them and set them on fire.

2. Mr. Hernandez’s own statement to emergency responders that he had gotten mad and “shouldn’t have done it.”

R. vol. 3, at 404; see Part 1, above. Given the strong evidence of guilt,

Mr. Hernandez didn’t show a reasonable probability of a different outcome

without Mr. Wheat’s response to defense counsel’s question.

Mr. Hernandez suggests that without Mr. Wheat’s response, the jury

might have convicted on a lesser charge of involuntary manslaughter based

on a finding of reckless and wanton behavior. The different charges reflect

a difference in severity: Second-degree murder includes extreme reckless

and wanton behavior, and involuntary manslaughter involves non-extreme

reckless and wanton behavior. United States v. Wood, 207 F.3d 1222,

1228–29 (10th Cir. 2000). But Mr. Hernandez’s suggestion rests on

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speculation, exaggerates the importance of a single sentence in a lengthy

cross-examination, and disregards other admissible evidence that had made

the same point in the disputed response.

First, Mr. Hernandez bases his argument on speculation about the

reasons for the verdict. We don’t know why the jury found second-degree

murder. See R. vol. 1, at 318 (instructing the jury that the “malice

aforethought” requirement for second-degree murder can mean “either to

kill another person deliberately and intentionally, or to act with callous

and wanton disregard for human life” (emphasis added)). And it’s unclear

how Mr. Wheat’s response would have affected the jury’s perception of his

reckless and wanton behavior.

Second, Mr. Wheat’s response constituted only a brief snippet in the

cross-examination and an even briefer snippet in the trial itself. See United

States v. McHorse, 179 F.3d 889, 902–03 (10th Cir. 1999).

Third, the substance of the response involved the improbability of

Mr. Hernandez’s explanation, which came in through other evidence. See

United States v. Rodriguez-Flores, 907 F.3d 1309, 1322 (10th Cir. 2018).

On direct examination, for example, Mr. Wheat said that he’d never been

aware of a fire that had started from a cigarette’s ignition of gasoline. And

after Mr. Wheat gave the response at issue, he explained that he didn’t

believe Mr. Hernandez because “gasoline doesn’t start.” R. vol. 3, at 604.

So even without the disputed response, the jury would have known why

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Mr. Wheat didn’t believe Mr. Hernandez’s theory for the fire. See United

States v. Dazey, 403 F.3d 1147, 1171–72 (10th Cir. 2005) (determining that

an error in allowing testimony was harmless because the expert witness

“carefully explained the source of his extensive knowledge” and “did not

directly testify that [the] defendant actually violated the law”). With

Mr. Wheat’s explanation, the jury could independently assess

Mr. Hernandez’s theory.

4.2.2 The government didn’t emphasize Mr. Wheat’s response to the question.

We also consider whether the government’s closing argument took

advantage of Mr. Wheat’s response to the question. See United States v.

Griffith, 65 F.4th 1216, 1220 (10th Cir. 2023), cert. denied, No. 23-5105,

2024 WL 1143722 (U.S. Mar. 18, 2024). For example, when the

government’s closing argument emphasizes the disputed testimony, this

emphasis could suggest an impact on the jury. Id.

The government’s closing arguments omitted any mention of

Mr. Wheat’s response to the question. This omission substantially reduced

the likelihood of prejudice. See United States v. Rodriguez-Flores, 907

F.3d 1309, 1323 (10th Cir. 2018) (concluding that opinion testimony on the

defendant’s credibility hadn’t affected a substantial right in part because

the government’s closing argument had contained no mention of the

disputed opinion on credibility); United States v. McHorse, 179 F.3d 889,

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902–03 (10th Cir. 1999) (concluding that the lack of a reference to

improper testimony in closing argument would weigh against a finding of

an effect on substantial rights).

4.2.3 The jury could independently assess the scientific principles underlying Mr. Wheat’s response.

Finally, we must consider whether the jurors had their own

opportunity to assess the defendant’s credibility. This factor cuts both

ways. Mr. Hernandez didn’t testify at trial, and the jury didn’t see any

recordings of Mr. Hernandez.

But Mr. Wheat wasn’t testifying about whether Mr. Hernandez had

lied. Instead, Mr. Wheat was expressing skepticism that a cigarette could

ignite gasoline. The jurors could thus independently assess the scientific

principles underlying Mr. Hernandez’s explanation for the fire, and this

factor doesn’t suggest an effect on Mr. Hernandez’s substantial rights.

* * *

Three factors favor the government, and one factor cuts both ways.

So Mr. Hernandez hasn’t shown an effect on his substantial rights, and the

district court didn’t plainly err by declining to sua sponte strike

Mr. Wheat’s response to defense counsel’s question.

5. The district court didn’t err by allowing introduction of Mr. Wheat’s photographs of the damage.

The final issue involves the admissibility of Mr. Wheat’s

photographs of the fire damage. In district court, Mr. Hernandez moved to

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exclude the photographs, arguing that Mr. Wheat had entered the property

in violation of the Fourth Amendment. The district court denied this

motion.

5.1 We conduct de novo review over the district court’s denial of the motion.

When we review this ruling, we

 view the evidence in the light most favorable to the government,

 accept the district court’s findings of fact unless they are clearly erroneous, and

 consider de novo the ultimate question of reasonableness.

United States v. Malone, 10 F.4th 1120, 1123 (10th Cir. 2021). A finding

of fact is clearly erroneous only if

 it lacks factual support or

 we have a definite and firm conviction that the district court clearly erred.

5.2 Mr. Hernandez lacked a reasonable privacy interest in the remains of the mobile home.

Mr. Wheat entered without a warrant to photograph the mobile home

after the fire. Mr. Hernandez argues that Mr. Wheat needed a warrant

because there were no exigent circumstances. Absent exigent

circumstances, the warrant requirement applies to fire-damaged property if

a reasonable privacy interest remains. Michigan v. Clifford, 464 U.S. 287,

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292–93 (1984). But we don’t need to decide the possibility of exigent

circumstances because Mr. Hernandez had no reasonable privacy interest in

the scene following the fire.

The Supreme Court has identified four factors to consider when

determining whether privacy interests remain in a fire-damaged home:

1. The type of property

2. The amount of fire damage

3. The prior and continued use of the premises

4. The owner’s efforts to secure it against intruders

Id. at 292. These factors suggest that no reasonable privacy interest

remained because the fire was “so devastating that no reasonable privacy

interests remain in the ash and ruin, regardless of the owner’s subjective

expectations.” Id.

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The mobile home was a private dwelling. But the damage to the

mobile home was extensive. When Mr. Wheat came to take photographs,

the mobile home looked like this:

Appellee’s Supp. R. at 6, 9.

Given the appearance of the mobile home, the district court found

that it had “essentially burned to the ground.” R. vol. 1, at 211. Without

anything of value remaining, no one could continue to use the mobile home

for any purpose. See United States v. Metzger, 778 F.2d 1195, 1200 (6th

Cir. 1985) (rejecting the existence of a privacy interest in a vehicle that

had been “virtually demolished” by an explosion). Mr. Hernandez thus

lacked a reasonable privacy interest in the scene. So Mr. Wheat did not

violate the Fourth Amendment by entering without a warrant.

6. Disposition

We affirm the district court’s rulings and Mr. Hernandez’s

convictions.