United States v. Walker

217 F. App'x 714

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2007
• Docket: No. 05-10678
• Status: Published

Opinions

MEMORANDUM

**

Larry Kent Walker appeals his conviction for felony murder, second degree murder, two counts of assault and the sentences imposed thereon. We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

The district court correctly held that Walker’s statements to law enforcement authorities were admissible because of the delay between tribal arrest and federal arraignment. We review de novo the district court’s interpretation of 18 U.S.C. § 3501(c). United States v. Wilson, 838 F.2d 1081, 1083, 1085 (9th Cir.1988). We review for clear error the district court’s factual findings related to the pre-arraignment delay. United States v. Padilla-Mendoza, 157 F.3d 730, 732 (9th Cir.1998).

Walker argues that the federal government and tribal law enforcement colluded in order to question him about the federal charges while he was in tribal custody. Generally, federal authorities may interview someone in local government custody. United States v. Michaud, 268 F.3d 728, 734 (9th Cir.2001) (citing United States v. Halbert, 436 F.2d 1226, 1229 (9th Cir.1970)). However, if local authorities colluded with federal officers to arrest and detain someone in order to interrogate him in violation of his right to prompt federal presentment, a confession obtained during this period must be suppressed. United States v. Alvarez-Sanchez, 511 U.S. 350, 359, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). In order to prove collusion, the defendant must show a “deliberate intent to deprive a defendant of her federal procedural rights.” Michaud, 268 F.3d at 734 (citing United States v. Doe, 155 F.3d 1070, 1078 (9th Cir.1998) (en banc)). The defendant bears the burden to show actual collusion; “a bare suspicion” of such collusion is insufficient. Id.

Here, the district court carefully considered the testimony of the officers and made a factual finding that there was no collusion. This finding is amply supported by the record. BIA agent Moran testified there was no collusion or cooperation between the two authorities. Tribal police officer Savage testified that federal authorities did not ask for tribal assistance. FBI agent Fuller testified that he was unaware of any tribal arrests for Walker. BIA agent Lietch testified that there was no collusion. Given the weight of this testimony, the district court did not err—much less commit clear error—in making the finding that the defendant had not sustained his burden of showing that he was deprived of his federal right to prompt presentment.

Walker points to additional statements made by Lietch at trial and contends that these statements contradict his earlier testimony. However, Walker did not renew his motion to exclude his confession, nor did he ask for a mistrial. Therefore, this testimony—whatever its import—does not bear on the district court’s pre-trial decision to admit the confession.

Because there was no collusion, there was no impermissible pre-arraignment delay.

II

The district court properly held that Walker’s confession was voluntary. Walker argues that his confession was obtained by coercion, strategic ploys, and a general overcoming of Walker’s will. The district court properly noted that Walker was read his Miranda rights, understood them, knowingly signed a waiver of his rights, and agreed to speak with law enforcement officials. Walker initiated further conversations with law enforcement. He voluntarily took a polygraph examination and signed a consent form to be examined. The district court correctly found that Walker knew he was a suspect in the murder and understood his rights. After examining all the relevant evidence, the court concluded that “[t]he interrogating officers engaged in no trickery, deception, or other techniques that defeated Defendant Walker’s will or free choice to participate in the interrogations.” After a careful review of the record, we see no error in this determination.

Ill

The district court did not err in declining to grant a mistrial based on alleged prosecutorial misconduct, a decision we review for abuse of discretion. United States v. Steele, 298 F.3d 906, 911 (9th Cir.2002). Walker objects to the government’s solicitation of evidence that indicated that someone had admitted strangling the victim. However, the district court provided a strong curative instruction, informing the jury that there was no evidence that Larry Walker or any other person admitted choking or strangling the victim. We presume that jurors follow curative instructions. Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), and there is no evidence in the record indicating that the jurors did not follow the instruction.

rv

The district court did not abuse its discretion in refusing to permit Walker to provide expert testimony on confessions. The district court conducted a Daubert analysis and concluded that the testimony was not sufficiently rehable and did not have a sufficient nexus to the facts of the case at hand. The proffered testimony consisted of direct quotations of a ten year old law review article interspersed with descriptions of some of Walker’s interrogations. The law review article consists of a general account of interrogation practices that could lead an innocent person to confess. The proffered testimony did not address Walker’s interrogation specifically as to how Walker would have been likely to confess to a crime he had not committed. Under these circumstances, the district eo'urt did not abuse its discretion in denying admission of the evidence as unreliable and lacking an adequate nexus to the case.

V

The district court did not err in denying Walker’s proposed jury instruction stating that the jury could give lesser weight to the federal officers’ testimony about Walker’s statements because the statements were not recorded. However, unrecorded statements are admissible, United States v. Coades, 549 F.2d 1303, 1305 (9th Cir.1977), and we have never required a trial court to instruct a jury to give unrecorded statements less evidentiary weight. Given this, the district court did not abuse its discretion in declining to give the jury instruction.

VI

For all these reasons, we AFFIRM the judgment of the district court.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.