Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 18, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-7084
LANCE KEITH MAYTUBBY, SR.,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00352-RAW-1) _________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________
Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges. _________________________________
PHILLIPS, Circuit Judge. _________________________________
After confessing to sexually abusing his nieces, Lance Maytubby moved
to suppress his confession as involuntary, arguing that the interrogating
officer’s offer to write a “mitigation report,” combined with the officer’s Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 2
supposed suggestion that Maytubby could receive counseling in lieu of prison,
overbore his will. Exercising our jurisdiction under 28 U.S.C. § 1291, we
affirm.
BACKGROUND
I. Factual Background
In December 2020, Officer T.J. White, the assistant police chief in
Calera, Oklahoma, called Lance Maytubby and asked him to come to the police
station to answer some questions. Maytubby agreed and arrived at the station
that evening. The full interview was videorecorded via Officer White’s body
camera.
The interview took place in the break room at the police station, and
Officer White left the door wide open. Officer White told Maytubby that he did
not have to talk, that he was not under arrest, and that he could leave at any
time. Then he told Maytubby that two of Maytubby’s nieces, R.L. and Z.L., had
accused Maytubby of sexually abusing them about four years ago while they
were about eleven or twelve years old. In a friendly and reasonable tone,
Officer White sought Maytubby’s side of the story.
Maytubby denied the accusations, but Officer White continued to ask
questions. Officer White asked why the girls would make these detailed
allegations if they were untrue. 1 He told Maytubby that the two nieces’ stories
1 The details of the allegations are not relevant to this appeal. 2 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 3
were “dead-on similar,” that neither knew the other had reported the sexual
abuse, and that the accusations had “stuff to back it up.” R. supp. vol. I, at
9:21–9:23, 12:08–12:29; see also id. at 13:48–14:03, 22:33–22:55. Then
Officer White suggested that an “excuse” might explain what had happened,
something like a mental-health issue, drinking, or drug use. Id. at 9:25–9:37,
14:08–14:24. But Maytubby continued to deny the accusations.
About one minute later, Officer White stated that he needed to deliver an
investigation report to the district attorney. He told Maytubby that he wanted
the report to include all mitigating circumstances, like that Maytubby was a
pastor who had made a mistake, had long been a “working man” and “family
man,” and had just “acted out of character.” Id. at 15:43–16:01. Officer White
said that the other people he’d interviewed said that Maytubby was “a good
guy, and [] an honest guy and that [he had] a good heart.” Id. at 16:05–16:22.
Maytubby asked, “So what’s the difference? I mean, it’s going to be the same
[whether it was out of character or not], right?” Id. at 17:45. Officer White
responded:
No, no there are people in this world that that is their M.O., that’s what they do. That’s what turns them on, is little kids, little girls or little boys, or whatever the case is. That that’s their thing and their goal in their life is just to go and get as many of these people as they can. And then there’s people that are drinking or on drugs or whatever that just are messed up on something or had a slipup and the next morning was like crap, I can’t believe I did that, I don’t believe that happened. You know, that it’s not part of their DNA that it’s not part of their character, but it happens. And of course once you ring a bell you can’t take the ding back. And all you can do is be sorry for it and you know, ask God for forgiveness on it. You’re
3 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 4
a religious man, you know, that’s by your own admission so I’m not trying to push my religion on you, but I, that’s how I deal with stuff, I’ll pray on it and ask for God’s forgiveness and I’ll ask for guidance and to making everybody better, making the situation better. That’s, that’s mine. You may be different with how you talk to God or if you talk to God at all. But I think it happened, I don’t think you’re that kind of guy and I think that it’s something that you’ve probably been struggling with. Those girls struggle too. And I don’t think that they deserve to struggle. I don’t think you deserve to struggle. I think it’s something that everybody needs to get past, get into some counseling, and move on with life. Cause can’t nobody just sit on this kind of stuff, it would, I know it would eat me up. But those girls are, those girls need to get on with their life just the same as you do. And I need to do my best to try to help along everybody getting closure. You know? Because stuff happens. Stuff happens. Id. at 17:49–20:17 (cleaned up).
Officer White again said that he wanted to report that Maytubby made a
mistake and that he was not “any kind of predator” and that the behavior
“hasn’t happened since.” Id. at 20:17–20:27, 23:02–23:14. Maytubby continued
to deny the accusations. Officer White explained that Maytubby’s denials put
Officer White in a difficult spot in reporting to the district attorney. He
reminded Maytubby that Maytubby didn’t need to speak to him, and he
reassured Maytubby that he was not going to arrest him that day. But Officer
White also stated that his desire to include mitigating information in the
investigative report depended on Maytubby’s admitting his sexual conduct with
his nieces: “I can’t help you out if you’re not honest to me, I just can’t. I can’t
go in there and say, . . . ‘Hey, he manned up. This is how it is. The guy acted
out of character.’” Id. at 23:19–23:44.
4 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 5
Then Maytubby said that he wanted to go home. Officer White said,
“Okay.” Id. at 23:45. Then Maytubby said, “Okay, I’m going to say ‘yes.’” Id.
at 23:48–23:51. Officer White said, “What do you mean? . . . You did do these
things?” Id. at 23:50–23:53. Maytubby responded, “Yes.” Id. at 23:53. Officer
White asked if Maytubby was telling the truth, and Maytubby said, “Yeah.” Id.
at 23:55.
Maytubby requested that he not be arrested at his workplace and that he
be permitted to go home to talk to his wife and family. As promised, Officer
White let Maytubby leave and even commented that he might not be arrested at
all, because “it’s in the hands of the DA.” Id. at 24:43–24:54. Then Officer
White said, “You being honest with me is going to go leaps and bounds in your
favor.” Id. at 24:55–25:02.
II. Procedural History
Maytubby was indicted for three counts of aggravated sexual abuse in
Indian Country in violation of 18 U.S.C. §§ 2241(c), 2246(2)(A)–(B), (D), 1151
& 1153; two counts of sexual abuse of a minor in Indian Country in violation of
18 U.S.C. §§ 2243(a), 2246(2)(A)–(B), 1151 & 1153; and one count of abusive
sexual contact in Indian Country in violation of 18 U.S.C. §§ 2244(a)(5),
2246(3), 1151 & 1153. The three aggravated sexual-abuse counts were against
R.L., who had not attained the age of twelve years; the two counts of sexual
abuse of a minor were also against R.L., but when she had attained the age of
5 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 6
twelve years but not the age of sixteen years; and the one count of abusive
sexual contact was against Z.L., who had not attained the age of twelve years.
Maytubby moved to suppress his interview statements as involuntary,
arguing that Officer White’s inducement (his including the mitigation factors in
his investigative report to the district attorney) combined with the mention of
counseling overbore his will. The district court held a pretrial suppression
hearing at which Officer White testified and portions of the interview video
were played. Officer White testified that he had never stated or implied that
Maytubby’s admissions would alter his charges or punishment.
After hearing arguments from counsel, the district court orally denied the
motion to suppress. R. vol. III, at 72. The district court noted that the parties
agreed on the facts but disputed whether the interrogation was so coercive as to
render Maytubby’s statements involuntary. In concluding that Maytubby’s
statements were voluntary, the district court relied on various factors set out in
our caselaw, such as the short duration of the interrogation, Officer White’s not
being physically abusive or aggressive, Maytubby’s knowledge that he was free
to leave without making a statement, and the absence of any evidence that
Maytubby was particularly susceptible to coercion. Regarding the specific
interrogation tactics, the district court said that Officer White “was honest in
suggesting that he would report to the prosecuting authority whether or not Mr.
Maytubby was cooperative” and that any “suggestion of leniency” did not
6 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 7
amount to “such coercion as to overcome Mr. Maytubby’s free will.” Id. at 71–
72.
After a four-day trial, a jury convicted Maytubby of the three counts of
aggravated sexual abuse against R.L. and the one count of abusive sexual
contact against Z.L.; the jury acquitted Maytubby of the two sexual-abuse
counts against R.L. while she was between the ages of twelve and sixteen. The
prosecution emphasized Maytubby’s confession in proving its case.
The court sentenced Maytubby to the advisory-guidelines sentence of life
in prison and entered final judgment. Maytubby timely appealed.
STANDARD OF REVIEW
In reviewing a district court’s order denying a motion to suppress, we
accept the district court’s underlying factual findings unless they are clearly
erroneous, and we view the evidence in the light most favorable to the district
court’s determination. United States v. Lopez, 437 F.3d 1059, 1062 (10th Cir.
2006). We review de novo “the ultimate issue of whether a statement was
voluntary” as a question of law. Id. (quoting United States v. Minjares-Alvarez,
264 F.3d 980, 984 (10th Cir. 2001)). “The government bears the burden of
showing voluntariness by a preponderance of the evidence.” United States v.
Young, 964 F.3d 938, 943 (10th Cir. 2020).
DISCUSSION
The Fifth Amendment guarantees that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
7 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 8
amend. V. For an incriminating statement to be voluntary, it must not be “the
product of coercion, either physical or psychological.” Young, 964 F.3d at 942
(internal quotation marks omitted). Coercion may take the form of “acts,
threats, or promises which cause the defendant’s will to be overborne.” Lopez,
437 F.3d at 1063 (internal quotation marks omitted). We consider the totality of
the circumstances surrounding the confession and view those circumstances
from the defendant’s perspective. Young, 964 F.3d at 942, 944. Some factors
that we consider include “(1) the age, intelligence, and education of the
defendant; (2) the length of detention; (3) the length and nature of the
questioning; (4) whether the defendant was advised of his constitutional rights;
and (5) whether the defendant was subject to physical punishment.” Lopez, 437
F.3d at 1063–64 (internal quotation marks omitted). More generally, we
consider “both the characteristics of the accused and the details of the
interrogation.” United States v. Toles, 297 F.3d 959, 966 (10th Cir. 2002).
“[T]he importance of any given factor can vary in each situation.” Sharp v.
Rohling, 793 F.3d 1216, 1233 (10th Cir. 2015).
I. Lopez Factors: Characteristics of Maytubby and the Interrogation
The interview was recorded on Officer White’s body camera, and the
parties do not dispute any of the facts about the interview. Maytubby went to
the police station voluntarily, and Officer White told him that he could leave at
any time and that he did not have to make a statement. Officer White did not
advise Maytubby of his Miranda rights, but Maytubby was not in custody so
8 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 9
Miranda warnings were not required. See Miranda v. Arizona, 384 U.S. 436,
444 (1966). The interview lasted less than thirty minutes. The tone of the
interview was conversational. The physical environment was not coercive—it
occurred in a break room with the door open. The interview included no
physical punishment. And nothing about Maytubby’s age, intelligence, or
education made him particularly susceptible to coercion. All these factors
weigh in favor of finding a voluntary confession.
II. Other Factors
Maytubby argues that the above factors are outweighed by Officer
White’s offer to include mitigating facts in his investigative report to the
district attorney if he admitted his nieces’ accusations. He also says that Officer
White suggested that Maytubby might be able to attend counseling in lieu of
prison. He likens his case to Young and Lopez, where we found that a powerful
inducement (a promise of leniency) combined with a misrepresentation (of the
law or evidence) rendered the confessions involuntary. 2 See Young, 964 F.3d at
943–44, 946 (holding confession involuntary where agent promised that Young
could reduce the length of his sentence with each truthful response,
misrepresented the length of the potential sentence, and claimed personal
influence with the federal district judge); Lopez, 437 F.3d at 1064–66 (holding
2 Maytubby does not argue the offer to provide mitigating facts to the prosecutor amounted to a “promise of leniency” and asserts “he is not required to show [] that Officer White’s inducement took [that] particular form.” Reply Br. at 5–6. 9 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 10
confession involuntary where agent exaggerated the evidence and told Lopez to
choose between a sentence of six or sixty years, functionally promising a
shorter sentence by 54 fewer years if Lopez confessed). He asserts that Young
and Lopez stand for the proposition that a powerful inducement combined with
a misleading statement suffices to render a confession involuntary.
During the interrogation, Officer White said, “I want to be able to [tell
the prosecutor] look, Lance is a working man . . . he’s got a family, he’s a
family man, he’s a pastor and he just acted out of character.” R. supp. vol. I, at
15:44–16:01. Maytubby does not argue that this statement was false, but says it
was coercive because offering a report that downplayed Maytubby’s
misconduct and portrayed him sympathetically was a powerful inducement that
overbore his will. We disagree.
Officer White’s interview statements were proper. Nothing suggests that
Officer White lied, and we see nothing unusual about an investigating officer
advising a prosecutor of mitigating facts and circumstances related to an
investigation. Cf. United States v. Perez, 127 F.4th 146, 176 (10th Cir. 2025)
(finding no coercion after determining that the agent’s statement was “no more
than a commonsense statement of fact”). Cooperating with the investigation had
the potential to benefit Maytubby. And critically, Officer White’s statements
lack the most concerning characteristic from Young and Lopez—the implication
that the officers had control over the sentence. See Young, 964 F.3d at 943–44,
946 (agent told Young that he could “physically buy down” the length of his
10 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 11
sentence with each truthful response); Lopez, 437 F.3d at 1064–65 (agent told
Lopez to choose between a sixty-year sentence for murder and a six-year
sentence for a mistake).
In this way, Officer White’s statements were a limited assurance—a
general statement about the benefit of cooperating—which we have repeatedly
held to be a permissible interrogation tactic. See United States v. Rodebaugh,
798 F.3d 1281, 1293 (10th Cir. 2015) (holding that the “vague and non-
committal” statement of “[i]f you work with us, we’ll go easy on you” was a
limited assurance that did not prevent the defendant from “freely and rationally
choos[ing] among the available courses of action” (internal quotation marks
omitted)); United States v. Lewis, 24 F.3d 79, 82 (10th Cir. 1994) (concluding
that the agent’s promise to make the defendant’s cooperation known to the
prosecutor was a limited assurance that did not taint the confession). Though
Maytubby is correct that Officer White provided specifics about what he would
tell the prosecutor, Officer White also acknowledged that leniency was in the
prosecutor’s control. See United States v. Lux, 905 F.2d 1379, 1382 n.2 (10th
Cir. 1990) (“Because [the defendant] was properly informed that the United
States Attorney was the only official with control over [the case], [the agent’s]
remarks did not constitute an implied promise.”).
Maytubby argues that Officer White’s statements left Maytubby believing
that he could receive counseling in lieu of a prison sentence. But though “we
view the coercive nature of assertions from the standpoint of the defendant,”
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Young, 964 F.3d at 944, Maytubby had no reason to believe that Officer White
was offering counseling in lieu of prison.
First, Officer White never even hinted that he had authority or control
over Maytubby’s sentence. Cf. R. supp. vol. I, at 14:44–15:00 (“I’m not a
judge, I’m not the prosecutor, so . . . I’m not gonna say that I for sure have this,
and I for sure have that, but again I’ve been doing this twenty years and I’ve
sure gotten arrest warrants with less.”). Second, Officer White’s mention of
counseling related to the personal and spiritual handling of guilt: “[To] deal
with stuff, I’ll pray on it . . . and I’ll ask for guidance and to mak[e] everybody
better, mak[e] the situation better. That’s, that’s mine. You may be different
. . . .” Id. at 18:35–19:15 (cleaned up). No reasonable person, Maytubby
included, would understand a statement like “all you can do is be sorry for it
and you know, ask God for forgiveness on it,” id., as an alternative to criminal
prosecution for sexually abusing a child. And it was with that backdrop that
Officer White said, “I think it’s something that everybody needs to get past, get
into some counseling, and move on with life. Cause can’t nobody just sit on
this kind of stuff, it would, I know it would eat me up.” Id. at 19:43–19:58. In
context, the counseling statement was about the emotional toll that sexual abuse
has on the people involved. We see no reason why Maytubby would understand
these statements as offering counseling in lieu of prison.
Indeed, context shows that Maytubby did not consider the statements
about counseling to be a bargain for admitting his crimes. For starters,
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Maytubby continued to maintain his innocence after Officer White mentioned
counseling. And Maytubby’s statements show that he knew he faced criminal
consequences—he contemplated an impending arrest, asking that he not be
arrested at his workplace and that he be given time to go home to talk to his
wife and family. He knew he wasn’t just getting counseling.
Finally, Maytubby argues that Officer White’s “high-pressure sales
tactic[s]”—telling Maytubby that he needed to prepare and deliver a report to
the prosecutor “now” and that he would “just go with” whatever Maytubby
decided to “leave with”—increased the pressure for Maytubby to confess.
Reply Br. at 14; Op. Br. at 17. We disagree.
Officer White told Maytubby that “I’m to a point now to where I’ve got
to put everything together and get it sent to the DA.” R. supp. vol. I, at 15:37–
15:43. He explained that he had already interviewed Maytubby’s nieces and
other family members. See id. at 16:06–16:14 (“You’re not the first one I’ve
talked to, I promise ya. I’ve talked to a lot of people this week.”). Telling
Maytubby that he was at the end of his investigation and that it was time to
submit the investigative report to the prosecutor was not a “high-pressure sales
tactic,” it was a truthful statement about how an investigation progresses.
When Maytubby continued to deny the allegations, Officer White
reminded Maytubby that he “wasn’t going to jail [him] tonight” and that
Maytubby didn’t have to speak with him, but if the denials were what
Maytubby wanted to “leave with,” Officer White would not be able to tell the
13 Appellate Case: 23-7084 Document: 79-1 Date Filed: 03/18/2025 Page: 14
prosecutor that Maytubby “manned up” and “acted out of character” and would
“just [have to] go with the evidence that [he had].” Id. at 22:20–23:08, 23:37–
23:43. These are commonsense statements. Officer White could not tell the
prosecutor that Maytubby admitted guilt if Maytubby did not admit guilt; he
could not tell the prosecutor that Maytubby just acted out of character if
Maytubby insisted that he did not act at all; and Officer White could not rely on
anything but the evidence he already had if Maytubby did not provide any
additional evidence. With full context, these true, isolated statements, said in a
conversational tone, do not convey a sense of immediacy or urgency.
Considering all the above factors, we conclude the interview was not
coercive.
III. Effect on Maytubby
Nothing in Officer White’s interview improperly induced a confession.
Almost twenty-four minutes into the interview, Maytubby abruptly admitted
Officer White’s accusations. Maytubby argues that he did so only after Officer
White made it clear that including mitigation facts in the investigative report
(and therefore any benefits accompanying such a report) depended on
Maytubby’s doing so. Maytubby notes that only thirty seconds passed between
Officer White’s saying that “I can’t help you out if you’re not honest to me”
and Maytubby’s admission. Id. at 23:19–23:49. But those thirty seconds were
not silent. During them, Maytubby sought assurance that he would not be
arrested if he chose to leave the police station. Right after Officer White stated
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that he could not help Maytubby unless Maytubby was honest with him,
Maytubby said, “Well, then I can go home right now, right?” Id. at 23:43.
Officer White said, “Okay.” Id. at 23:44–23:45. Less than five seconds later,
Maytubby summarily acknowledged the truth of his nieces’ accusations. Id. at
23:48–23:51. This assures us that Maytubby’s fear of immediate arrest played a
large part in his earlier denials of wrongdoing. We conclude that Officer White
did not overbear Maytubby’s free will or “critically impair[]” Maytubby’s
“capacity for self-determination.” Perez, 127 F.4th at 171 (internal quotation
marks omitted).
CONCLUSION
In context, none of Officer White’s statements were coercive, and
Maytubby’s will was not overborne. Maytubby’s confession was voluntary. We