*1 Before TYMKOVICH , EBEL , and EID , Circuit Judges.
_________________________________
EBEL , Circuit Judge.
_________________________________
This case presents an issue generated by the sea change in criminal
investigation and prosecution that was initiated by the Supreme Court’s decision in
*2
McGirt v. Oklahoma,
We hold that such evidence was admissible against Little under the good faith
exception to the Fourth Amendment’s exclusionary rule. As previously explained by
this court, the Creek, the federal government, and the State of Oklahoma all believed
for at least a century before and during the investigation in this case that Oklahoma
had jurisdiction over offenses committed on Creek land after Oklahoma became a
state. While we held in 2017, in Murphy v. Royal,
Little raises many other arguments for reversal, all of which are either waived, forfeited or lack merit. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we therefore AFFIRM.
I. BACKGROUND
Prior to 2015, Defendant Justin Little and Hannah Watkins dated for many years and eventually had a baby together. In early 2015, Watkins told Little that she no longer wanted to be romantically involved with him. After that time, Watkins had other boyfriends, and Little frequently tried to interfere with her relationships. For example, Watkins began dating Leon Hoang in late 2015. The first time Watkins *4 stayed with Hoang, Little drove two hours to his residence, arrived at 3:00 or 4:00 a.m., and informed Watkins that he was worried about her and had a colleague track her phone for him. In January 2017, Little was at a gathering with Watkins and her then-boyfriend, Justin Lackey. Watkins noticed Little leave the building and re-enter with dust and grass on his back—as if Little had been lying on the ground—and Lackey later discovered that his brake lines had been cut. After Lackey, Watkins dated Dennis Mitchell. Little found out about the relationship and messaged Mitchell on Facebook, falsely telling Mitchell that he and Watkins were intimate again and that Watkins had sent him photos. Little sent Mitchell semi-clothed and nude photos of Watkins.
Watkins then began dating Jonathan Weatherford, the victim in this case, in November 2017. About a month later, Little messaged Watkins on Facebook and stated that he wished their son “could enjoy his family together.” (I ROA 538.) On March 19, 2018, Little purchased a 783 Remington .300 Winchester Magnum rifle. He also owned a handgun, which he regularly kept in his truck. Little’s truck was a white Chevy Silverado with a sticker on the back left windshield.
In April 2018, Watkins told Little that she was very serious about Weatherford and planned to stay with him for the rest of her life. Little—who served in the military and had been enlisted for six years—told Watkins that their son could only receive military benefits if he and Watkins were married. This was a lie, but Watkins believed it and married Little on April 19, 2018. Three days later, on April 22, Little *5 had plans to visit Watkins’s apartment in Jenks, Oklahoma, but called to tell her he was running late.
At about the same time, Weatherford, who had been staying with Watkins, apparently left her apartment and began walking down railroad tracks near a high school aquatic center. Weatherford was subsequently found shot and killed on the railroad tracks around 12:00 p.m. Little arrived at Watkins’s apartment around 12:10 p.m.
Jenks Police Department (JPD) Assistant Chief Melissa Brown arrived at the crime scene and initiated the investigation. JPD officers canvassed the area surrounding the crime scene and determined that the shooting occurred around 11:55 a.m. after speaking to over thirty people . Chief Brown spoke to Watkins near the scene, and Watkins provided details regarding Little’s vehicle. Officers reviewed surveillance footage from various locations near the crime scene and identified a white Chevy Silverado matching the description of Little’s vehicle in the area around the time of the shooting. Surveillance footage collected from the investigation showed Little’s truck turning into the aquatic center parking lot, driving to a nearby industrial lot, and parking moments before a gunshot could be heard on the footage. Surveillance footage also showed Weatherford walking along the train tracks near where Little had parked and a figure in dark clothing following him.
Shortly after the shooting, multiple people came to the police station and told police about prior incidents between Weatherford and Little. Oklahoma state officers arrested Little later that day.
Little was taken to the police station, where he was read the Miranda rights and signed a waiver. Little was then interviewed by Chief Brown and Officer Jason Weis. He eventually admitted that he was in Jenks that day and saw Weatherford walking on the train tracks.
Officers went to the home shared by Little and his mother. Little’s mother consented to the officers’ seizure of Little’s rifle, which was found in the living room where Little slept. Officers also found a lens cap to the scope of Little’s rifle in the bed of his truck.
The next morning, April 23, Chief Brown interviewed Little with Detective Nicholas Chandlee. Chief Brown began the interview by telling Little that his Miranda rights “still st[ood]” and asking whether Little still wanted to speak with the officers, and Little responded affirmatively. (Id. at 354.) Chief Brown stopped the interview after Little expressed his desire to speak with an attorney.
II. PROCEDURE
A federal grand jury indicted Little for first-degree murder in Indian country. 18 U.S.C. §§ 1111(a), 1153. After a jury trial, Little was convicted on that charge. The district court imposed a mandatory life sentence.
III. DISCUSSION
1. The district court did not err in denying Little’s motions to suppress the evidence gathered by the JPD investigation, which was used in the subsequent federal criminal trial.
a. Standard of Review
*7
“In reviewing a district court’s denial of a motion to suppress, this court
considers the totality of the circumstances and views the evidence in the light most
favorable to the government.” United States v. Madden,
2012) (citing United States v. Kimoana
,
b. Evidence obtained through the Jenks Police Department investigation was admissible in the subsequent federal prosecution of Little under the good faith exception, even though the JPD lacked jurisdiction to gather that evidence.
Little, an Indian, shot and killed Weatherford on the Muscogee Creek
Reservation, and therefore officers of the Jenks, Oklahoma, Police Department
lacked jurisdiction when they investigated the homicide, arrested and interrogated
Little, and searched Little’s home. See McGirt v. Oklahoma,
The question we must answer here is whether the evidence obtained from
JPD’s investigation without jurisdiction should have been excluded in the subsequent
*8
federal prosecution or whether the Leon
[1]
good faith exception to the exclusionary
rule applies. “To remedy Fourth Amendment violations, federal courts ordinarily invoke
and apply the exclusionary rule, precluding the government from introducing at trial
unlawfully seized evidence.” United States v. Pemberton,
Cir. 2024). But exclusion is not an automatic remedy—instead, “applying the
exclusionary rule may not always be the appropriate remedy for a Fourth Amendment
violation in a particular case.” Id. The exclusionary rule is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect.”
United States v. Calandra,
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
Herring v. United States,
The Court has further explained that “[r]eal deterrent value is a ‘necessary
condition for exclusion,’ but it is not ‘a sufficient’ one.” Davis v. United States, 564
U.S. 229, 237 (2011) (quoting Hudson v. Michigan,
The Supreme Court has recognized a good faith exception to the exclusionary
rule. In Leon, the Supreme Court held that when officers execute a search “in
objectively reasonable reliance on a subsequently invalidated search warrant,”
exclusion of the fruits of that search is generally not warranted.
We recently applied the good faith exception to a case involving circumstances
similar to Little’s case. In United States v. Pemberton, this court addressed a murder
committed in McIntosh County, Oklahoma, which “straddle[s] the Creek Nation and
*10
the Cherokee Nation reservations”; “the murder, certain parts of the investigation,
and Mr. Pemberton’s arrest occurred within these reservations.”
In Murphy, we held that Congress had not disestablished the Creek Reservation—the
same holding reached by the Supreme Court three years later in McGirt. Murphy,
We conclude that Murphy does not defeat application of the good faith
exception in this case. To the contrary, between this court’s Murphy decision and the
Pemberton specifically supports the application of the good faith exception to
the warrantless police conduct at issue here. Generally, “Leon’s good-faith exception
to the exclusionary rule . . . applies only narrowly outside the context of a warrant.”
United States v. Herrera,
*12 Supreme Court’s decision in McGirt, the holding of Pemberton controls—state officers could reasonably believe that they could lawfully investigate offenses on the Creek Reservation.
First, after we issued our opinion in Murphy, we granted the appellee’s unopposed motion to stay the mandate in that case, and that stay lasted until after the Supreme Court decided McGirt and affirmed our decision in Murphy in 2020. [4] Second, as explained in Pemberton, the Creek, the State of Oklahoma, and the United States all believed for over a century that the state had jurisdiction over offenses committed on the Creek Reservation, and the state had been investigating and prosecuting such offenses during that time. Therefore, immediate compliance with our decision in Murphy, notwithstanding that the mandate had been stayed, would have required an overnight sea change in criminal investigation and prosecution—the state criminal system would have had immediately to cease its operations regarding offenses on the Creek Reservation, and the federal government would have had to take over all investigations and prosecutions. Third, the context surrounding our decision to stay the mandate in Murphy specifically indicated to law enforcement that the issuance of our opinion in that case did not require the overnight sea change *13 described above. While we granted the motion to stay the mandate in a brief order without substantive analysis, the unopposed motion that we granted argued that there was “good cause” to stay the mandate under Fed. R. App. P. 41(d)(2)(A) because: [i]f the mandate issue[d], it would [have] create[d] the need to execute a significant shift in how law enforcement and criminal prosecution is conducted in the area at issue, involving substantial resource expenditure by state, federal, and tribal governments that may not be necessary in light of the possibility of reversal by the U.S. Supreme Court.
Unopposed Motion to Stay the Mandate Pending the Filing of a Petition for Writ of
Certiorari at 3, Murphy,
Based on these facts, a state officer acting in good faith after Murphy—but
before McGirt—could reasonably have believed that they could continue lawfully to
investigate offenses committed on the Creek Reservation. Our stay of the mandate in
Murphy, suggestions of the likely reason for doing so—to prevent a massive sea
change in criminal law enforcement that could have been entirely undone had the
Supreme Court reversed—and the systemic continuation of generally accepted
Oklahoma state law enforcement operations regarding offenses committed on the
Creek Reservation all supported that conclusion. Or, at the very least, these
circumstances created significant uncertainty that we cannot conclude that there was
clearly established law that Oklahoma officials lacked authority to arrest and
investigate Little. Oklahoma state officers faced a difficult decision after we decided
Murphy and stayed the mandate—immediately comply with our opinion, while
potentially allowing offenses in Indian country to go without investigation while the
federal government scrambled to fill the law enforcement void, or rely on multiple
sources, including the motion to stay the mandate that we granted and authority from
Oklahoma courts, that suggested that state officers did not need to cease their
operations regarding such offenses during that time. The doubts surrounding the
state of the law after Murphy were only conclusively resolved by the Supreme
Court’s decision in McGirt in 2020. Given that fact and the unique nature of the
*15
issue presented in Murphy and McGirt, we are not persuaded that application of the
exclusionary rule in this case would have any meaningful deterrent effect.
Ultimately, we cannot say that the wrongful conduct of the JPD officers who
investigated and arrested Little was “sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the price
paid by the justice system.” Herring v. United States,
This is especially true given the systemic nature of investigations and arrests by state officers without jurisdiction that occurred in Indian country between our decision in Murphy and the Supreme Court’s decision in McGirt. Here, unlike the typical good faith case, the constitutional issue extends far beyond the facts of Little’s case—it implicates every investigation conducted by state officers in Indian country after our Murphy decision but before the Supreme Court decided McGirt. Given the unlikely deterrent value of the exclusionary rule under these circumstances and the substantial social costs that would result from its application here—the suppression of all evidence obtained by Oklahoma state officers investigating offenses in Indian country between Murphy in 2017 and McGirt in 2020—we conclude that exclusion is not warranted.
Our analysis in this case is limited to the circumstances faced by Oklahoma
state officers here. Therefore, we are not altering the generalized rule that our
opinions have precedential effect when issued, even when the mandate has not yet
issued. See, e.g., In re Zermeno-Gomez,
c. Officers had probable cause to arrest Little.
We review the district court’s probable cause determination de novo. United
States v. Biglow,
Officers arrested Little just eight hours after the shooting, and they had done the following by that time: taken statements from over thirty people in the areas *17 surrounding the scene of the shooting from which officers determined that the shooting occurred around 11:55 AM; received a statement from Watkins providing Little’s name and a description of his vehicle; reviewed surveillance video from nearby cameras and identified a vehicle matching the description of Little’s vehicle driving towards the scene around the time of the shooting; taken grainy photos of a screen displaying the surveillance video because they could not get a tape of the video; and taken statements from multiple witnesses who visited the police station and informed officers of prior altercations between Little and Weatherford— including Weatherford’s ex-girlfriend, who informed police that Little had previously threatened Weatherford.
This evidence supported a “fair probability” that Little killed Weatherford at
the time officers arrested Little. Johnson,
d. Officers’ entry into Little’s home and seizure of his rifle did not violate the Fourth Amendment.
Little argues that officers’ entry into his home violated the Fourth Amendment
because the government has failed to establish that his mother, who shared the home
*18
with Little and was present at the time, voluntarily consented to the officers’ entry—
and consent is the only basis by which the government attempts to justify the search.
Therefore, Little argues, his rifle, which was seized during the allegedly unlawful
search of his home, should have been suppressed. Little’s arguments lack merit.
“Consent is an exception to the Fourth Amendment’s warrant requirement for
a search of a residence.” United States v. Romero,
Cir. 2007) (quoting United States v. Butler,
Finally, Little argues that his mother was distraught during her interaction with
the police, and therefore her consent was not voluntary but was instead given under
duress. As an initial matter, this argument is likely forfeited. Little raised this
argument in a cursory manner below and did not explain the basis for his argument
*20
that Little’s mother was under duress when she gave officers consent to enter the
home. Nonetheless, even if Little’s mother was “emotionally distraught with the
news of the shooting and her son’s arrest,” nothing in the record indicates that her
emotions were “so profound as to impair her capacity for self-determination or
understanding of what the police were seeking.” (Aplt. Br. 27-28); United States v.
Duran,
e. Officers’ interrogation of Little did not violate the Fifth Amendment.
Little makes three arguments with respect to the Fifth Amendment: 1. Officers violated his Fifth Amendment rights under Miranda by interviewing him a day after giving him Miranda warnings without repeating the warnings; 2. Officers ignored Little’s purported invocation of his right to counsel during his second interview; and 3. Officers coerced Little’s statements during his interviews. None of these arguments have merit.
i. Officers did not violate the Fifth Amendment when they did not re-Mirandize Little a day after giving him the warnings. The Supreme Court held in Miranda v. Arizona that a person’s statements
made during custodial interrogation are not admissible at trial against that person
unless the person was apprised of his rights before questioning.
Miranda warnings remain effective for subsequent questioning “unless the
circumstances change[] so seriously that [the subject’s] answers no longer were
voluntary, or unless he no longer was making a ‘knowing and intelligent
relinquishment or abandonment’ of his rights.” Mitchell v. Gibson,
Applying these principles here, we conclude that the circumstances of the April 23 interrogation did not change so seriously that Little’s statements were no longer voluntary or Little no longer understood and knowingly relinquished his rights. While there was a change in secondary officers—Officer Weis joined Chief Brown during the April 22 interrogation, and Detective Chandlee replaced Weis for the April 23 interrogation—Chief Brown was involved in both interrogations. And, as found by the district court, all other aspects of the interrogations were similar— they took place in the “same room, discussing the same events, based on the same history.” (I ROA 354). Therefore, officers did not need to re-Mirandize Little for his statements on April 23 to be admissible against him. [8]
*23 ii. Little did not unequivocally invoke his right to counsel. Little argues that he unequivocally invoked his right to counsel at the start of the April 23 interrogation. Chief Brown told Little that his Miranda rights “still st[ood]” and asked Little, “[s]o you still want to talk to us?” (I ROA 148). Little’s response was, “[y]eah, I can still talk to y’all.” “I wanted to talk to a lawyer because I just wanted to see where I stand at right now is all.” (Id.).
“[C]ustodial interrogation may continue unless and until the suspect
actually
invokes
his right to counsel; ambiguous or equivocal statements that
might
be
construed as invoking the right to counsel do not require the police to discontinue
their questioning.” United States v. Nelson,
Here, Little’s statement was ambiguous. He began by stating that he could “still talk” to the officers. Additionally, his statement that he “wanted to talk to a lawyer” so that he could “see where he [stood] at” could have been understood by a reasonable officer to mean multiple different things—for example, that Little wanted to speak to a lawyer at that moment, or that Little had previously wanted to speak to a lawyer but no longer wanted to. Therefore, Little did not unequivocally invoke his right to counsel at the start of the April 23 interrogation, and officers did not violate *24 his rights under Miranda by continuing the interrogation. See Nelson, 450 F.3d at
1212 (officers need not ask “clarifying questions in response to an equivocal or ambiguous statement”). [9]
iii. Little’s statements were voluntary.
“The voluntariness of a statement depends upon an assessment of the totality
of all the surrounding circumstances including both the characteristics of the accused
and the details of the interrogation.” United States v. Cash,
In applying a totality of circumstances analysis, we have considered
“(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 any physical punishment.”
Id. at 1280-81 (citation omitted). “[C]oercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S.
157, 167 (1986). “Ultimately, the proper inquiry is whether the confession was ‘the
product of an essentially free and unconstrained choice,’ or whether the individual’s
*25
‘will has been overborne.’” Carter v. Bigelow,
The district court provided a summary of the circumstances of the interrogation:
JPD questioned him for approximately two (2) hours the first evening and one (1) hour the next morning. Brown, Weis, and Chandlee[, the three officers involved in the interrogation,] did not use or threaten the use of physical punishment. The only brief physical contact occurred when Defendant reached across a table to point at something on Weis’ notepad and Weis brushed his hand back. Miranda safeguards were clearly given and . . . applied to both the April 22 and April 23 interviews. Defendant did not exhibit any physical or mental difficulties, instead remaining coherent, generally polite, and conversational throughout the interviews. The interrogations took place in an office at JPD with padded chairs, good lighting, and drinking water easily available.
(I ROA 357).
Under these circumstances, we conclude that Little’s statements during the
interrogations were voluntary. None of Little’s counterarguments are persuasive.
First, Little argues that his age at the time of the interrogation—twenty four—and the
fact that he had no previous experience with the criminal justice system weigh
against a finding that his statements were voluntary. While these are relevant factors,
Little’s personal characteristics do not, on the whole, suggest he was “unusually
susceptible to coercion”—instead, the record shows that he has a high school
education and was enlisted in the military for six years prior to the interrogation.
United States v. Toles,
*26
Second, Little argues that Chief Brown promised leniency if he confessed.
“Promises of leniency . . . ‘may render a confession coerced.’” United States v.
Young,
Toward the end of the recording, Weis and Defendant raised their voices with each other. Defendant reached across more than half the table and pointed at something on Weis’ notepad. Weis brushed Defendant’s hand back, which caused Defendant to immediately recoil and say, “Please don’t touch me.” When Weis asked why, Defendant said he felt “a little bit threatened right now,” and Weis immediately apologized.
(I ROA 337-38). The record does not support Little’s contention that he was physically intimidated into making his statements.
2. Little has waived some of his appellate arguments under the invited-error doctrine.
This court’s “‘invited-error doctrine precludes a party from arguing that the
district court erred in adopting a proposition that the party had urged the district court to
adopt.’” United States v. McBride,
Here, Little agreed to preadmit evidence of a handgun found in his truck and messages he sent to Watkins. Additionally, he proposed the jury instruction regarding the permissible purposes for which the jury could consider evidence of Little’s “other acts” admitted under Fed. R. Evid. 404(b). Therefore, under the invited-error doctrine, Little has waived his challenge to that evidence and jury instruction.
3. Little’s remaining challenges fail on their merits.
a. None of Little’s evidentiary challenges have merit.
This court reviews the district court’s evidentiary rulings for abuse of
discretion. United States v. DeChristopher,
i. The district court did not abuse its discretion in admitting other acts evidence.
After the government filed a notice of intent to offer other acts evidence under Fed. R. Evid. 404(b), Little moved to exclude the evidence. The district court granted Little’s motion in part but allowed the admission of evidence of some prior acts, three of which are at issue here: 1. In 2015, Watkins was staying at the home of her coworker, Hoang, when Little appeared at 4:00 AM and eventually informed Watkins that he was tracking her cell phone; 2. In late 2016 or early 2017, Watkins and her boyfriend at the time, Lackey, suspected Little of cutting Lackey’s brake lines; and 3. Little sent nude photographs of Watkins to another of her boyfriends, Mitchell. We review Little’s appellate challenge to the admission of that evidence for abuse of discretion.
When analyzing the admissibility of other acts evidence, the court must first
determine whether the evidence is “intrinsic” or “extrinsic.” United States v. Kupfer,
There are four requirements for evidence to be admissible under Rule 404(b):
1. It must be “offered for a proper purpose”; 2. It must be relevant; 3. Its probative
value must not be substantially outweighed by its potential for unfair prejudice; and
4. Upon request, the trial court must “instruct the jury that the similar acts evidence is
to be considered only for the proper purpose for which it was admitted.” Huddleston
v. United States,
First, in the government’s notice of intent to offer evidence under Rule 404(b), it explained, “Little’s history with Watkins and her romantic partners illustrates Little’s motive for killing Weatherford.” (I ROA 49). Second, the evidence was relevant. The government was required to show that Little shot and killed *31 Weatherford with malice aforethought and premeditation, and the evidence of Little’s history of hostility towards Watkins’s other partners was highly probative of Little’s motive for killing Weatherford—Watkins’s partner at the time with whom she intended to stay for “the rest of [her] life.” (Id. at 546). For this same reason, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Finally, as explained above, Little waived his appellate challenge to the Rule 404(b) jury instruction by proposing the instruction below.
Little raises two counterarguments. We find neither persuasive. First, he argues that the government did not provide sufficient evidence to prove that Little cut Lackey’s brake lines in 2017. While “similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor,” there was sufficient evidence supporting those conclusions here. Huddleston, 485 U.S. at 689. Specifically, Watkins testified that after a conversation at her grandmother’s house between Lackey, Little, and her, Little went outside, where Lackey’s car was located, and “sidestep[ped]” back inside. When Little came back inside, his back was dirty. Then, when Lackey and Watkins left, they realized Lackey’s brake lines had been cut. (I ROA 522-25).
Little’s second counterargument is that the prior acts were not similar enough
to the charged offense—homicide—to support admission under Rule 404(b). See United States v. Zamora,
ii. The district court did not abuse its discretion in admitting Little’s rifle.
Little argued in his trial brief below that the district court should exclude the
.300 caliber Remington rifle seized from his home and the lens cover to the rifle’s
scope, which was found in his truck.
[12]
The district court ruled that the rifle was
Little does not challenge the admission of the lens cover on appeal. He
appears separately to challenge the admission of the rifle and the rifle’s scope, which
was attached to the rifle. However, he did not raise a separate challenge to the
admission of the scope before the district court. To the extent that he raises a
separate challenge on appeal to the admission of the scope, that challenge is waived
because he did not argue plain error in his appellate briefs. Richison v. Ernest Grp.,
Inc.,
In his reply brief, Little argues, “[t]he scope was attached to the rifle and therefore challenging the admission of the rifle encompassed the scope.” (Aplt. Reply Br. 24). Therefore, we do not address the scope separately and instead focus on whether the district court abused its discretion in denying Little’s request to exclude the rifle. *33 admissible. Therefore, even though Little did not object to the admission of that evidence at trial when it was presented, this court reviews for abuse of discretion, not plain error. See Fed. R. Evid. 103(b) (“Once the court rules definitively on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).
Little argues that the rifle was not relevant, as required under Fed. R. Evid. 402, and that any probative value it had was substantially outweighed by the risk of unfair prejudice (see Fed. R. Evid. 403). To be relevant, as defined by Fed. R. Evid. 401, evidence need only have “any tendency to make a fact more or less probable than it would be without the evidence,” and that fact must be “of consequence in determining the action.” The rifle and scope are relevant under this standard: Weatherford was killed by the same caliber bullet as those shot from a .300 caliber Remington rifle; Little purchased the rifle a month before the homicide; the rifle was found in Little’s home; and the lens cover for the rifle’s scope was found in Little’s truck shortly after the homicide. Given these facts, the rifle tended to make it more probable that Little killed Weatherford. [13] Additionally, given the high probative *34 value of the rifle, the district court did not abuse its discretion in concluding that the probative value was not substantially outweighed by the danger of unfair prejudice. [14]
iii. The district court did not plainly err in admitting the bullet recovered from Weatherford’s body.
Little concedes that plain error review applies to his challenge to the district court’s admission of the bullet recovered from Weatherford’s body, as he did not move to exclude the bullet or object to its admission below. Little argues that the district court plainly erred in admitting the bullet because the bullet was not relevant, as the government “did not establish [it] was the bullet recovered from Weatherford.” (Aplt. Br. 48). We are unpersuaded: Chief Brown testified at trial that she attended Weatherford’s autopsy and that photos from the autopsy—including photos of the bullet recovered from his body—accurately reflected the autopsy; the government’s expert testified that the physical bullet admitted at trial was the bullet given to him by the government for examination; and the expert viewed autopsy photos of the bullet at trial and testified that the photos “appear[ed] to be consistent” with the bullet admitted at trial (I ROA 679-80). Therefore, admission of the bullet was not plain error.
Little raises a second argument—that the rifle was not relevant because the government did not prove that the rifle was seized from Little’s home—although he also stated in his reply, “[t]he issue is not chain of custody.” (Aplt. Reply Br. 24). Nonetheless, the government presented evidence establishing that the rifle admitted at trial was the one seized from Little’s home: Chief Brown testified that she seized the rifle from Little’s home; she testified that a photograph admitted at trial depicted the rifle taken from Little’s home; and a government expert who examined the rifle before trial testified that the rifle admitted at trial was the same rifle that was depicted in the photograph admitted at trial.
iv. The district court did not abuse its discretion in admitting statements by Watkins.
Little raises two preserved challenges to statements made by Watkins that were admitted at trial. First, he argues that Watkins’s statement to Little that she “planned on being with” Weatherford for “the rest of [her] life” was inadmissible hearsay under Fed. R. Evid. 802. (I ROA 546). The district court concluded that the statement was not hearsay because it was offered to prove the effect on the listener— Little—rather than “to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c) (defining hearsay). We agree. The government did not use Watkins’s statement to prove that Watkins, in fact, intended to stay with Weatherford for the rest of her life. Instead, the government used the statement to prove that Little believed she was going to do so and therefore had a motive for killing Weatherford. [15] *36 Second, Little argues that Watkins testified, contrary to a pretrial order, that she told police that she believed Little committed the homicide. We disagree. In a pretrial order, the district court granted Little’s “motion to exclude Watkins[’]s statements regarding who she believed was responsible for the murder.” (I ROA 495). However, Watkins did not testify that she believed Little was responsible. Instead, the prosecutor asked Watkins, “[n]ot referencing Mr. Little, were you aware of anyone who wanted to hurt [Weatherford]?” Watkins responded, “[o]ther than him, no.” (Id. at 556). This question did not violate the pretrial order and Mr. Little did not ask that the answer be stricken or limited. [16]
b. None of the district court’s jury instructions constitute reversible error.
Little forfeited his challenges to the district court’s jury instructions by failing
to object below, and therefore we review for plain error. Fed. R. Crim. P. 52(b);
Wright,
i. The district court did not violate the procedural rules governing jury instructions.
*37
As an initial matter, Little argues that the district court violated Fed. R. Crim.
P. 30 when it gave the jury copies of the jury instructions on the first day of trial.
Rule 30(c) provides, “[t]he court may instruct the jury before or after the arguments
are completed, or at both times.” We have recognized that Rule 30(c) gives the
district judge wide discretion when determining how to instruct the jury. See United
*38
Gallant,
Here, the first-degree murder instruction given by the district court explained that, to find Little guilty, the jury needed to conclude that he “killed the victim with malice aforethought.” (I ROA 881). Therefore, the “mere presence” instruction was not necessary—if the jurors concluded that Little killed the victim, they were necessarily not convicting based only on Little’s “mere presence” at the scene. Ultimately, Little fails to establish that the district court’s denial of his requested “mere presence” instruction was error, let alone plain error.
iii. The district court’s reasonable doubt instruction was not plainly erroneous.
The district court’s reasonable doubt instruction stated, in relevant part: If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on *39 the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
(I ROA 874) (emphasis added). Little argues that the underlined sentence shifted the
burden to him. We disagree, as we have previously approved the language
challenged by Little. See United States v. Petty,
iv. The district court’s credibility instruction was not plainly erroneous.
Little challenges the district court’s credibility instruction, which stated, in relevant part: “[Y]ou should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon.” (I ROA 879). Little argues that this instruction favored the government’s evidence because multiple government witnesses failed to recall important information. Little has failed to establish plain error.
The Supreme Court has explained that district courts must “use great care that
an expression of opinion upon the evidence should be so given as not to mislead, and
especially that it should not be one-sided.” Quercia v. United States,
c. The district court’s denial of Little’s request to recross-examine Watkins does not warrant reversal.
Little argues that the district court erred by denying his counsel’s request to recross Watkins after she testified for the first time on redirect that Weatherford was not a drug dealer. One of Little’s defense theories at trial was that Weatherford could have been killed by someone related to his drug dealing activities, and therefore, Little argues, it violated his rights under the Confrontation Clause to be denied the opportunity to recross Watkins on that issue. [19]
“When a district court restricts cross-examination at trial, the party seeking to
cross-examine forfeits a challenge on appeal by failing to state the ground for
objection; stating a different ground at trial than on appeal; or by failing at trial to
*41
object to the limitation at all.” United States v. Roach,
Cir. 2018) (cleaned up). Little forfeited his challenge below by failing to offer any
explanation of the grounds for his request to recross Watkins.
[20]
While Little did not
argue plain error in his opening brief on appeal, we review for plain error because he
argued under that standard in his reply brief after the government raised the
preservation issue in its brief. See United States v. Leffler,
(10th Cir. 2019) (this court has “left open the door for a criminal defendant to argue error in an opening brief and then allege plain error in a reply brief after the Government asserts waiver”).
We conclude that even if Little could establish the first three prongs of the
plain error standard, he has failed to establish that any error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Cristerna-Gonzalez,
We are unpersuaded by Little’s argument that the district court cut off his counsel before she could explain the grounds for the recross request, especially given that, before cross-examining a different witness at trial, she requested a side bar and provided the exact explanation that was lacking with respect to the request to recross Watkins.
*42
Hauk,
d. None of the government’s statements during closing argument warrant reversal.
Little challenges statements made by the prosecutor during closing argument,
but he did not object to any of the statements below. When a “defendant fails to
object to a prosecutor’s statement, reversal is warranted only when: (1) the
prosecutor’s statement is plainly improper and (2) the defendant demonstrates that
the improper statement affected his or her substantial rights.” United States v.
Fleming,
“Repeated references to prejudicial facts not in evidence.” (Aplt. Br. 60).
“[P]rosecutorial comments may be improper when they refer to matters not in the
evidence or distort the record by misstating the evidence.” United States v.
Hammers,
Little first points to the prosecutor’s statement that “all” of the witnesses who
spoke with police immediately after the shooting said “[l]ook at Justin Little.” (II
ROA 51-52). On appeal, the government concedes that this statement “overstated the
evidence.” (Aplee. Br. 46). That is correct—Chief Brown testified that “three or
four” witnesses came to the police station and provided information, but she did not
testify that each witness told the police to look at Little. (I ROA 636). Therefore, the
statements were plainly improper. However, the statements were not “enough to
influence the jury to render a conviction on grounds beyond the admissible evidence
presented,” as required for reversal. United States v. Orr,
Little next challenges the prosecutor’s statement that “every single time [Watkins] tried to have a relationship with anybody after [her relationship with Little ended, Little] found a way to interfere with it in some way.” (II ROA 37-38). This statement was not plainly improper, as it was supported by Watkins’s testimony. When asked, “[a]fter you broke up with Mr. Little for good in 2015, did you ever again date a man that he did not attempt to interfere with in some way?” Watkins responded, “[n]o.” (I ROA 595). [21]
Finally, Little challenges the prosecutor’s speculation that Little “[c]ould . . .
have had a dark colored jacket.” (II ROA 87). That statement was not plainly
improper. In her closing argument, Little’s counsel highlighted the fact that Little
*45
was wearing a light shirt when he was arrested and interviewed by police on the day
that Weatherford was killed, and therefore his physical description did not match the
individual seen in surveillance footage following Weatherford—that individual was
wearing dark pants and a dark shirt. In response, the prosecutor highlighted the fact
that Little was wearing dark pants and “[c]ould . . . have had a dark colored jacket.”
(II ROA 87). “Prosecutors have considerable latitude to respond to an argument
made by opposing counsel.” United States v. Franklin-El,
Cir. 2009) (citation omitted); see also United States v. Dazey,
“Vouching for the credibility of [a government] witness.” (Aplt. Br. 63). “An
argument is only improper vouching if the jury could reasonably believe that the
prosecutor is indicating a personal belief in the witness’ credibility, either through
explicit personal assurance of the witness’ veracity or by implicitly indicating that
information not presented to the jury supports the witness’ testimony.” Franklin-El,
Little challenges the prosecutor’s statement that Lackey, one of Watkins’s ex- boyfriends who testified for the government, had “no dog in this fight”—meaning he had no motivation to lie. (II ROA 82). Lackey testified that he believed Little cut the brake lines to his car in 2017, and the prosecutor referenced this testimony at closing to support the government’s argument that Little showed a pattern of *46 interfering with Watkins’s relationships. In response, Little’s counsel argued that the evidence of the brake-cutting was speculative. The prosecutor then responded by stating that Lackey had “no dog in this fight” and explaining that “[Lackey] wants no part of any of this. He wants no part of the Justin Little drama that follows in [Watkins’s] wake.” (Id.). The prosecutor’s statement accurately characterized testimony by Lackey, who explained that, after the brake-cutting incident, his relationship with Watkins ended and he left the National Guard unit in which he served with Little because he “just did not want to be around any of that.” (I ROA 663). Therefore, the prosecutor’s statement was not improper vouching.
“Improper comments on Little’s guilt.” (Aplt. Br. 64). It is generally
improper for a prosecutor to provide his personal opinion about the defendant’s guilt.
United States v. Meienberg,
Little argues that the prosecutor made two statements in closing that improperly commented on Little’s guilt: when discussing Little’s interrogation, during which Little was asked whether a lie detector would reveal that his statements to officers were truthful and Little initially answered affirmatively but then admitted to lying, the prosecutor said that was not “what an innocent person does” (II ROA 43); and when discussing Little’s request to see the evidence collected by police before continuing to answer questions in the interrogation, the prosecutor again said, “none of this is what an innocent person does” (II ROA 47).
These statements were plainly improper—the prosecutor stated that an
innocent person would not behave the way Little behaved, and this statement had no
*47
basis other than the prosecutor’s personal opinion. However, given the strength of
the evidence against Little, the opportunity for Little’s counsel to respond, and the
district court’s instruction to the jury that the lawyers’ arguments were not evidence,
Little has failed to establish that the statements affected the jury’s decision, as
required for relief. See Meienberg,
e. Even when considered cumulatively, any errors by the district court do not warrant reversal.
Little argues that errors by the district court cumulatively warrant reversal. When there are both preserved and unpreserved errors, we first consider whether the preserved errors are cumulatively harmless. United States v. Caraway, 534 F.3d 1290, 1302 (10th Cir. 2008). If they are, “the prejudice from the unpreserved error is examined in light of any preserved error that may have occurred.” Id. Little has identified no preserved errors, and, at most, three unpreserved errors—two statements by the prosecutor that Little displayed conduct that did not match that of an innocent person, and the district court’s denial of Little’s counsel’s request to recross Watkins. Little has failed to carry his burden of establishing that these errors cumulatively affected the jury’s decision in his case, as required for relief.
f. Substantial evidence supported Little’s conviction. Little challenges the sufficiency of the evidence against him. This court *48 review[s] the sufficiency of the evidence de novo, considering the evidence in the light most favorable to the government to determine whether any rational jury could have found guilt beyond a reasonable doubt. . . . In conducting our review, we consider all of the evidence, direct and circumstantial, along with reasonable inferences, but we do not weigh the evidence or consider the relative credibility of witnesses. . . . Consequently, our review of the evidence is highly deferential[, and] we may reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
United States v. Griffith,
g. Little’s Eighth Amendment challenge to his mandatory life sentence is foreclosed by precedent.
Little challenges his mandatory life sentence under the Eighth Amendment on
the ground that “he was 24 at the time of the offense and neuroscience now
demonstrates that the adolescent brain develops until age 25 or 26.” (Aplt. Br. 69)
(citing Miller v. Alabama,
IV. CONCLUSION
In sum, we hold that the Oklahoma state officers who investigated Little’s offense on the Creek Reservation in April 2018 could reasonably believe that they had jurisdiction to investigate and arrest Little. While our 2017 decision in Murphy held that the Creek Reservation had not been disestablished, that decision still does not warrant exclusion here. The state officers who investigated and arrested Little could still reasonably have believed after Murphy that they had jurisdiction to do so based on a combination of multiple unique facts, none of which are independently sufficient—the stay of the mandate in Murphy, suggestions of potential reasons for
our stay of the mandate, the potential for Supreme Court review, and the continued understanding in Oklahoma that the state had jurisdiction over offenses on the Creek Reservation.
Finally, none of Little’s other arguments warrant relief. Therefore, we AFFIRM Little’s conviction and sentence.
Notes
[1] United States v. Leon,
[2] While McGirt and the present case involve offenses committed on the Creek
Reservation, this court relied on a concession by counsel in Pemberton that the
disestablishment analysis from McGirt applies equally to the Cherokee Reservation.
Pemberton,
[4] We stayed the mandate “for 90 days and/or until the deadline passe[d] for
filing a certiorari petition in the Supreme Court,” and provided that the stay would
continue “until the Supreme Court’s final disposition” if this court received notice
that the respondent had filed a certiorari petition. Order Granting Unopposed Motion
to Stay the Mandate Pending the Filing of a Petition for Writ of Certiorari, Murphy,
[5] While the Supreme Court did not grant certiorari in Murphy until May 21, 2018—after the April 2018 investigation in this case—there was still uncertainty regarding the future of our Murphy decision in April 2018 given the pending certiorari petition and the context surrounding the stay of our mandate.
[6] We are unpersuaded by Little’s argument that the evidence at trial indicates that officers did not actually view the surveillance footage of Little’s vehicle before they arrested him. Chief Brown testified at trial that police did not “have” surveillance video before arresting Little, but only “had” the grainy photos of the video. (I ROA 636). But Chief Brown also provided testimony indicating that police reviewed the video before the arrest: “Although there were a lot of people at the aquatic center, there weren’t a lot of people driving on the road at that time, surprisingly enough, so [Little’s vehicle] just kind of stood out when we were looking at the video footage.” (Id. at 634) (emphasis added).
[7] Little does not argue on appeal that his mother lacked authority to consent to the search.
[8] We are not persuaded by the cases Little cites to support his argument that officers needed to re-Mirandize him on April 23. See, e.g., Coddington v. Sharp, 959 F.3d 947, 951, 959-60 (10th Cir. 2020) (rejecting argument that the defendant needed to be re-Mirandized when he was interrogated at a police station about three hours after he was Mirandized at his home when officers asked the defendant if he remembered being read, and waiving, the Miranda rights, and the defendant responded affirmatively—especially given the defendant’s previous experience with law enforcement and the Miranda warnings). While Chief Brown did not ask Little if he remembered the Miranda warnings and his waiver, and therefore Coddington is distinguishable, she did inform Little that his rights “still st[ood]” and confirmed that he wanted to continue speaking to the officers. When combined with the factors discussed above, this was sufficient to support our conclusion that circumstances had not changed so seriously that Little no longer understood his rights.
[9] The case upon which Little relies to support his invocation argument, United
States v. Giles,
[10] A criminal defendant can challenge the admission of his own involuntary
statements under both the privilege against self-incrimination and the Due Process
Clause. It is unclear from Little’s brief which theory he is presenting on appeal.
However, the inquiry is the same under either theory. Cash,
[11] Fed. R. Evid. 404(b) provides: “(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
[13] Little points to other evidence to suggest that the rifle was not relevant: “[t]here was not a rifle depicted in the surveillance videos that allegedly showed the killer running after Weatherford”; and “[t]he ballistics evidence demonstrated the bullet may have been fired from a Remington rifle or one of 42 other makes and models of guns.” (Aplt. Br. 47). This evidence does not establish that the rifle was not relevant, but instead goes to the extent of the rifle’s probative value. Given the very low threshold presented by Fed. R. Evid. 401 and 402, the district court did not abuse it discretion in concluding that the rifle was relevant.
[15] Neither of Little’s counterarguments is persuasive. First, Little argues that
Watkins never testified regarding Little’s reaction to her statement, and therefore the
statement was not really admitted for the purpose of showing its effect on Little.
(Aplt. Br. 50) (quoting United States v. Graham,
[16] To the extent that Little argues on appeal that Watkins’s statement was inadmissible hearsay, we disagree. Watkins did not testify about her prior statement when she was interviewed by police, but instead answered the prosecutor’s question about her present recollection of what she believed at that time.
[17] Before selecting the jury, the district court asked both parties if they had “any exceptions either to an instruction I am giving or to one I’m not giving that you wish – that you proposed?” (I ROA 719). Both parties said no. The judge provided the jury with copies of the approved instructions on the first day of trial. Then, on the last day of trial, the judge gave the jury the final set of instructions—which were the same as the initial set of instructions except one instruction had been deleted and one had been added. Before giving the final instructions to the jury, the district court reviewed the instructions with the parties, and Little did not object.
States v. Starks,
[18] Ultimately, we reject Little’s challenge under Rule 30 because here, unlike in Starks, the district court read the final instructions to the jury at the close of the case before the jury began deliberations. ii. The district court did not plainly err in failing to give Little’s requested “mere presence” instruction. Little challenges the district court’s denial of his request to give the jury the following instruction: “Mere presence at the scene of a crime or mere knowledge that a crime is being committed is not sufficient to establish that the defendant committed the crimes charged in this case.” (I ROA 453). Generally, “[c]riminal defendants are entitled to jury instructions upon their theory of defense provided there is evidentiary and legal support.” United States v.
[18] In Starks, the district court provided the jury with printed copies of the
instructions and read the instructions to the jury before the parties presented
evidence. Starks,
[19] As an initial matter, it does not appear that Little asserted his theory regarding Weatherford’s alleged drug-dealing activities until after Watkins testified. On appeal, Little cites testimony by an investigating officer that Weatherford was a known drug dealer and was warned to “be careful.” (I ROA 862). However, that testimony occurred after Little’s counsel’s request to recross Watkins. Additionally, Little cites his trial counsel’s opening statement, but that statement did not include any indication of Little’s argument that Weatherford was a drug dealer. (Id. at 761- 64).
[21] Little also argues that the prosecutor’s statement violated the district court’s Rule 404(b) order, which limited the government’s ability to present prior acts evidence regarding specific incidents involving some of Watkins’s ex-boyfriends. We disagree. The Rule 404(b) order did not prohibit Watkins’s broad statement about Little’s interference with her past relationships, but instead listed a few specific prior acts which could not be presented at trial. Therefore, the prosecutor did not violate the order by referring to Watkins’s generalized statement.