PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

April 28, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 12-5154

STANLEY EUGENE HILL,

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of Oklahoma
(D.C. No. 4:11-CR-00179-GKF-2)

Howard A. Pincus, Assistant Federal Public Defender (Warren R. Williamson, Federal

Public Defender, Interim, with him on the briefs), Office of the Federal Public Defender,
Denver, Colorado, for the Defendant-Appellant.
Joel-lyn Alicia McCormick, Assistant United States Attorney (Danny C. Williams, Sr.,
United States Attorney and Leena Alam, Assistant United States Attorney, with her on
the briefs), Office of the United States Attorney, Tulsa, Oklahoma, for the PlaintiffAppellee.

Before LUCERO, MURPHY, and MATHESON, Circuit Judges.

LUCERO, Circuit Judge.

Stanley Hill appeals following his conviction on several charges related to the
robbery of a bank. During trial, Charles Jones, a special agent with the Federal Bureau of
Investigation (FBI), testified as an expert. Agent Jones stated that he was trained in
special tactics and ways to identify [] deception in statements and truths in statements
and that in his opinion, many of Stanleys1 answers were not worthy of credence and
[did] not make sense. Jones claimed that Stanley displayed evasive behaviors
common among the criminal element to keep law enforcement at bay during an
interrogation. When asked about Stanleys statement that he would rather die than face
charges, Jones testified, Never in my career have I seen that with an innocent person.
And when the prosecutor asked about Stanleys repeated invocations of God in support of
his truthfulness, Jones stated, My training has shown me, and more[ ]so my experience
in all these interviews, when people start bringing faith into validating [] their statements,
that theyre deceptive. Those are deceptive statements.
Stanley did not contemporaneously object to the admission of this evidence.
Nevertheless, we conclude the court plainly erred in admitting this testimony and, in light
of the relative weakness of the governments overall case, that it affected Stanleys
substantial rights. We further conclude that this is one of the exceptional cases in which
we exercise our discretion to notice the plain error because failing to do so would
seriously undermine the fairness, integrity, or public reputation of judicial proceedings.
1

Because this case involves several individuals with the surname Hill, we will
refer to these individuals by their first names.
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Exercising jurisdiction under 28 U.S.C. 1291, we reverse.

I
Stanley Hill and his brother, Vernon Hill, were charged with bank robbery with a
dangerous weapon and use of a firearm during and in relation to a crime of violence
following the November 5, 2011, robbery of an Arvest Bank in Tulsa, Oklahoma.
Stanley was also charged with being a felon in possession of a firearm. Following a jury
trial, Vernon was convicted of both charges against him. The jury deadlocked on the
charges against Stanley, and the district court declared a mistrial.
The government proceeded at the first trial upon the theory that Vernon and
Stanley were the two men who physically entered and robbed the bank. After
discovering additional evidence, however, the government came to believe that Vernon
and another Hill brother, Dejuan, were the two individuals who entered the bank while
Stanley acted as a getaway driver. Stanley and Dejuan were charged by superseding
indictment with a Hobbs Act violation, bank robbery with a dangerous weapon, and use
of a firearm during and in relation to a crime of violence. Stanley was also charged a
second time with being a felon in possession of a firearm.
A
At the second trial, the government adduced testimony from several individuals
who witnessed the robbery. A customer of the bank testified that she observed two men
wearing hoodies and gloves standing near the bank just before the robbery, one of whom
was talking on a cell phone. Bank employees testified that two masked men entered the
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bank shortly after it opened, ordered the occupants to the floor, and demanded money.
One of the robbers brandished a firearm, identified by one of the employees as a 9mm.
The thieves put money into a tan-colored pillow case and fled west on foot. A witness
who lived near the bank testified that he saw two men running down the street carrying a
white bag shortly after the robbery.
The stolen cash included bait bills containing a GPS tracking device. This
device automatically activated upon being removed from a tellers drawer and sent a
notification to a Tulsa police sergeant at 8:30 or 8:31 a.m. The speed of the tracking
device indicated it was being transported in a vehicle. Within a few minutes, it came to a
stop in the vicinity of 1100 East Pine in Tulsa. A Tulsa police officer testified that within
five to ten minutes of being notified by dispatch of the bank robbery, he arrived in that
area and focused on a residence at 1107 East Pine (the East Pine residence). Shortly
after he arrived on the scene, the officer reported that a black Nissan Altima left the
driveway of that home. The driver was later identified as Dejuan. No other person
entered or exited the home during the officers surveillance. The tracking device
indicated that it was located within the East Pine residence.
After approximately two hours, officers observed Stanley exiting the home and
took him into custody. A short time later, Vernon came outside and was also detained.
The brothers were transported separately to a Tulsa police station. Stanley identified
himself as Daniel Hill and provided a birth date and social security number. After pulling
up a picture of Daniel Hill and noticing the absence of a tattoo on Stanleys arm, a
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detective confronted Stanley about his identity. Stanley began crying and asked to speak
with the detective in a room out of Vernons earshot. After being moved to a separate
interview room, Stanley identified himself truthfully.
Tulsa Police Corporal Christopher Stout and Agent Jones conducted a videotaped
interview with Stanley, which was played for the jury. In his interview, Stanley stated
that he woke up at his girlfriend Whitney Landrums home although he claimed not to
know her address. He said that after waking up he went to the home at 1107 East Pine,
which Stanley identified as belonging to his father, Stanley Battle. He claimed that no
one was present when he arrived at roughly 6:00 a.m., and that he watched television and
fell asleep in the living room shortly thereafter. Stanley said that he planned to watch his
stepsister, who was going to be dropped off at the home by her mother sometime that
morning. He was unsure of the step-sisters exact age, stating that she was about 11, and
said he did not know the name of her mother. Stanley did not know the exact time she
was going to be dropped off.
Stanley claimed he was awoken by the house phone several hours later and was
informed there were police outside. He went outside and was taken into custody.
Stanley claimed that an officer told him that another man had left the house, and said that
he did not hear anyone come or go while he was sleeping. He stated in the interview that
he was not sleeping very deeply, and would have known if anyone else was in the home.
After hearing Stanleys story, the interviewers challenged his version of the facts.
They explained that a bank has been robbed and that material from the bank was found in
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the East Pine residence. They suggested that if he was the only one in the house, he was
likely the bank robber. Stanley then acknowledged that his brother exited the home after
he did, but said he did not know anyone else was in the home. He denied involvement in
the bank robbery. When officers expressed disbelief, he repeatedly stated that he would
swear on the Bible, and swore to God that he was telling the truth. He also stated that he
did not want to live and that he would rather die than face charges.
Meanwhile, Tulsa Police obtained a search warrant for the East Pine residence.
Officers discovered a tan-colored pillowcase full of cash in the bottom drawer of the
oven, including the tracking device taken from the Arvest Bank. An officer testified that
the drawer was very full of pots and pans and that he could hear officers struggling to
get that drawer open with pots and pans in the way from the living room. The living
room was located fifteen to eighteen feet from the kitchen. Officers also found a Glock
.45 caliber pistol, a pair of black pants, a black ski mask, and two pairs of black gloves in
a bedroom of the house. They discovered mail addressed to Vernon and Battle.
Corporal Stout testified about the difficulties he encountered attempting to contact
Landrum. He stated that Landrum repeatedly hung up on him, and that Landrum resisted
contact when served with a subpoena. He also learned that Landrum drove a black 2004
Nissan Maxima. Landrum was subpoenaed, asserted her Fifth Amendment rights, and
was granted immunity. She testified that Stanley is her boyfriend and the father of two of
her children. Landrum further testified that Stanley left her home early in the morning on
the day of the robbery and that she went to the East Pine residence sometime around 8:00
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or 9:00 a.m. to pick him up. By the time she arrived in her Nissan, police were already
on the scene.
The prosecution also introduced two phone calls made by Stanley from jail. In a
discussion between Stanley and Landrum about bond money, Landrum relays that
Vernon referred to Stanley as the weak link of the group and that he suggested Stanley
be bailed out first if possible. In another call between Stanley and his father, Battle warns
Stanley not to say nothing to do with what they holding yall for . . . dont say where
you was. Battle notes that the police might suggest other people had provided
information, and says, you know were family, we stick together, so you dont have to
worry about the police talking about who told what.
B
A significant portion of the governments case involved cell phone evidence.
Neither Vernon nor Stanley was carrying a cell phone when they were taken to the police
station. Landrum testified that her cell phone number ended in 3860 and that she was
not sure where her phone was at the time of the robbery. She also stated that she spoke
with Vernon and Dejuan by phone regularly. A phone company employee testified that
Vernon subscribed to a cell phone number ending in 9204, and that Landrum
subscribed to two different numbers: the number ending in 3860, and another phone
number ending in 1576. Landrum told investigators that she did not know which
phone Stanley was using on the day of the robbery, but she was certain it was not
Vernons phone. Stanley provided the 1576 number as a contact number to officers on
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the day of the robbery. Dejuan also listed the 1576 number as his contact information
when visiting his brothers in jail.
Another special agent with the FBI testified about cell phone tower data. He
explained that cell phone towers typically include three separate receivers, each of which
provides cellular service to a wedge-shaped sector emanating from the tower. Each
sector encompasses 120 degrees, meaning that a tower provides 360 degrees of coverage.
Phone companies maintain data on the tower and sector to which a cell phone connects
when making or receiving a call. The agent testified that in densely populated areas, cell
phone towers are designed to have some overlap such that a phone might connect to two
different towers from the same location, but that the data provides a general area from
which a call was placed or received. The agent prepared several exhibits showing the
locations of various towers in the Tulsa region, superimposed with highlighted areas
depicting an approximate range for each relevant tower sector. He stated that the angles
of the sectors depicted in the maps were definitive but that the distance from the tower
was a general depiction based on his training and experience. The maps show that
Arvest Bank is located to the southeast of the East Pine residence, and that Landrums
home is between the two, not far from the bank.
The cell tower data showed that Vernons phone, ending in 9204, contacted the

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tower nearest Arvest Bank on the evening prior to the robbery.2 It was located in the
sector that includes Landrums home at 6:47 a.m. on November 5, the day of the robbery.
The phone then received a call while located near the East Pine residence at 7:09 a.m. At
8:19 and 8:30, the phone contacted two towers near Arvest Bank. Seconds before 8:31,
and just before the robbery, Vernons phone made a call that contacted the tower nearest
Arvest Bank. At 8:53 and 9:07, Vernons phone was again located in the vicinity of the
East Pine residence.
The phone number ending in 3860 also provided detailed information. That phone
received a call from Vernons phone at 6:47 a.m. and it too was located near Landrums
home. At 7:15, it received a call from the 1576 phone and was still located in the vicinity
of Landrums home. At 8:19, Vernons phone called the 3860 number, and both phones
contacted the same tower near the Arvest Bank. The two calls made from Vernons
phone at 8:30 were both to the 3860 number, and the two phones contacted the same
towers: the first call connected the phones through a tower near Arvest Bank, and the
second call went through the tower nearest the bank. At 9:04, the 3860 phone connected
to a tower located southwest of the East Pine residence. The 3860 phone exchanged
several calls with Vernons phone from several different towers, apparently while
travelling in a southerly direction.
The data on the phone ending in 1576 was more limited. It contacted a tower near
2

The governments evidence indicated that the area just west of Arvest Bank was
served by up to three separate towers.
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Arvest Bank the night before the robbery. Between 7:09 and 7:14 a.m. the morning of
the robbery, that phone exchanged several calls with Vernons phone while both were
located near the East Pine residence. At 7:15 and 7:16, the 1576 number was near the
East Pine residence when it exchanged calls with the 3860 number, which as noted
above, was in the vicinity of the Landrum home. At 8:07, the 1576 number called an
unknown phone number from the vicinity of the Landrum home, and was turned off
shortly thereafter.
Special Agent Jones provided testimony as the case agent on the governments
theory of the case. Jones testified that he believe[d] Stanley Hill was the getaway driver
waiting for Dejuan and Vernon to exit the bank and get in the vehicle as he drove them to
1107 E. Pine after the bank robbery. With respect to the cell phone data, Jones opined
that Dejuan was carrying the 1576 phone and Vernon the 9204 phone on the night before
the robbery, and were casing the bank when those phones contacted the tower nearest
the bank on the evening of November 4. On the morning of the robbery, Jones believed
that Stanley had the 3860 phone, and was using it to communicate with Vernon and
Dejuan through Vernons phone. Jones stated that he believed Dejuan was carrying the
1576 phone on November 5, but had it switched off during the time of the robbery.
According to Jones, Dejuan obtained the 3860 phone shortly after the robbery, which
explained the southward movement of that phone during the time that Stanley and
Vernon were known to be inside the East Pine residence.

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C
Jones also testified about the interrogation of Stanley. He stated that he had
attended two specialized courses in interrogation and interviews, including the Reid
school, which is a higher-level school of interrogation and interviewing. He explained:
[T]he Reid school is designed to as an interview process and interrogation
process; part of that is psychological as well. Its much like your five-yearold children and how you can break down a story or you understand whats
going on during the process of that interview.
In the Reid school, youre trained on some special tactics and ways
to identify on deception in statements and truths in statements. That school
is a sought-after school for investigators and interviewers because of the
caliber of that training you do get towards that endeavor.
Jones further stated that he had conducted over a thousand interviews as an FBI agent.
The prosecution asked, in reference to [his] earlier testimony regarding [his]
training and experience in interrogating and interviewing, what Jones based on [his]
training and experience took from the interrogation as to [Stanleys] truthfulness.
Jones responded:
[T]he most difficult thing to tell the difference in is partial truths, . . .
something thats partly true, thats a lot harder to detect than a flat-out lie or
a convicting [sic] truth.
So during the course of that interview, we were able to, as trained
eyes, pick out that this isnt these are partial truths, at best. And several
of those are theyre shown through things that are not purposely said or
done by the interviewee. They are responses that occur naturally, thats a
psychological thing that happens, that we dont control.
For example, in this case, and Ive seen it in other interviews, a
mumbling of something that they dont want to talk about. You may say, I
was at the grocery store at three or whatever or whatever, and you will go
away from the question and just discount that as something you dont need
to know, Mr. Police Officer. And there was much of that going on
throughout the interview, for whatever, or whatever, and whatever with Mr.
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Stanley Hills interview, occurred on a continuous basis, just avoiding its

a way to avoid the question without just flat out saying, Im not going to
talk to you.
The prosecutor then asked, In reference to the substance of the responses that
were provided . . . how does that factor into your observations of whether hes being
truthful or not? She provided Stanleys claim that he planned to babysit his step-sister at
the East Pine home as an example of the substance of responses. Jones answered that
Stanleys version of events does not connect [the] dots, does not make sense, and
was not something that [he] viewed as reasonable. Specifically, Jones doubted that if
Stanley was going to be responsible for a child, he would immediately fall asleep and
never w[a]ke up while somehow bank robbery money got stuffed in the oven drawer of
your house, and then the bank robbers ran away before the police could get there, and you
didnt hear anything, but you were waiting on somebody to arrive in this unlocked house
in north Tulsa.
Jones then identified several factors that contributed to his opinion that Stanley
was being untruthful during the interview. He noted that after Stanley was told that
police found items connected to the bank robbery in the East Pine residence, Stanleys
story ha[d] to change a little bit. And prior to that, I wasnt sleeping that
hard. After that, to my knowledge, to my knowledge.
I cant question his knowledge. I cannot say, I know what you
knew. But he could evade the question by saying, well, to my
knowledge, because thats something I cannot corroborate. That is a move
that is common among the criminal element to keep law enforcement at bay
and not be able to determine the actual facts of what happened.
Jones also stated that Stanleys assertions that he had no will to live were
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indicative of guilt, testifying: I have not seen, in my experience, an innocent person

willing to die because they were talking with police officers and FBI agents. Never in
my career have I seen that with an innocent person. He continued: I also dont
reasonably believe an innocent person would want to die because they were being talked
to by police officers. It doesnt make sense to me. The prosecutor asked if, in [Jones]
experience, has it been a demonstration of consciousness of guilt that an individual will
want to die rather than tell the truth. Jones responded, In my experience, sometimes
people believe death would be better than a long-term prison sentence.
The prosecution also asked how Jones viewed Stanleys call on his faith or
swearing to God during the course of the interview. Jones testified:
Beyond my own religious feelings towards what he was saying, the training
that Ive received, that is a common way that somebody with guilt will
want to validate the story theyre telling you. They cant validate it with
facts, so they hope they can get you to believe them, because theyre trying
to validate their story through a supposed belief.
He may be a God-fearing man, I do not know that, but the truth is
the truth. You do not have to back the truth. When Im asked a question, is
the car blue, the car is blue. I dont have to swear to God. I do not have to
bring religion into that statement. The truth is the truth.
My training has shown me, and more[ ]so my experience in all these
interviews, when people start bringing faith into validating of their
statements, that theyre deceptive. Those are deceptive statements.
Defense counsel did not make any objections during Jones testimony about the
truthfulness of Stanleys statements. Jones was the final witness at trial. During closing
argument, the prosecutor referred the jury back to Jones testimony, stating that Jones in
scrutinizing this interview with Stanley Hill . . . has to figure out whats truthful in this
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interview, whats he trying to hide.

D
The jurors were instructed that they are the judges of the facts and that they are
the sole judges of the credibility or believability of each witness. The instructions
specifically discussed the witness who expressed opinions concerning cell site tower
analysis and Jones, who expressed opinions regarding investigation of conspiracies and
robberies. This instruction stated that scientific, technical, or other specialized
knowledge may assist the jury in understanding the evidence or in determining a fact in
issue. It also explained that [a] witness who has such knowledge, skill, experience,
training or education may testify and state an opinion concerning such matters. The jury
was cautioned that it was not required to accept such an opinion and was instructed to
give the opinion testimony as much weight as you think it deserves, considering the
education and experience of the witness, the soundness of the reasons given for the
opinion, and other evidence. With respect to Stanleys out-of-court statement, the jury
was instructed to consider various factors in determining whether [this] statement is
reliable and credible.
The jury deliberated for several hours. After submitting two questions to the
judge, the jury returned a verdict of guilty on all counts. The district court sentenced
Stanley to 154 months imprisonment. He timely appealed.
II
Stanley advances a single argument on appeal: that the district court erred in
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permitting Jones to provide expert opinion testimony as to Stanleys credibility. Because

Stanley did not object below, we review only for plain error. See United States v. Frost,
684 F.3d 963, 971 (10th Cir. 2012). Plain error occurs when there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. (quotation omitted); see also
Fed. R. Crim. P. 52(b) (A plain error that affects substantial rights may be considered
even though it was not brought to the courts attention.).
A
Error is plain if it is obvious or clear, i.e., if it is contrary to well-settled law.
United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003) (quotation omitted). In
general, for an error to be contrary to well-settled law, either the Supreme Court or this
court must have addressed the issue. United States v. DeChristopher, 695 F.3d 1082,
1091 (10th Cir. 2012) (quotation omitted). However, in certain circumstances, the
weight of authority from other circuits may make an error plain even absent a holding
from this court or the Supreme Court. United States v. Hardwell, 80 F.3d 1471, 1484
(10th Cir. 1996). We conclude that the admission of Jones opinion testimony was error,
and that it was plain.
As a general matter, expert opinion testimony may be introduced at trial if it will
help the trier of fact to understand the evidence or to determine a fact in issue. Fed. R.
Evid. 702(a). An expert may provide opinion testimony if: the testimony is based upon
sufficient facts or data and is the product of reliable principles and methods, and the
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expert has reliably applied the principles and methods to the facts of the case. Fed. R.
Evid. 702(b)-(d). The touchstone of admissibility under Rule 702 is the helpfulness of
the evidence to the trier of fact. United States v. Rangel-Arreola, 991 F.2d 1519, 1524
(10th Cir. 1993).
Stanley does not argue that Jones was unqualified to offer the opinion he provided,
but instead that the subject matter of his testimonythe credibility of another person
may not be addressed by an expert testifying under Rule 702. We agree. As this court
made clear in United States v. Toledo, 985 F.2d 1462 (10th Cir. 1993), [t]he credibility
of witnesses is generally not an appropriate subject for expert testimony. Id. at 1470.
There are several reasons for the prohibition against expert testimony on other witness
credibility. Such testimony: (1) usurps a critical function of the jury; (2) is not
helpful to the jury, which can make its own determination of credibility; and (3) when
provided by impressively qualified experts on the credibility of other witnesses is
prejudicial and unduly influences the jury. Id. (citations omitted).
In Toledo, we considered testimony from two psychiatrists who had examined the
victim of a kidnapping and sexual assault. One stated that [n]o matter how crazy people
are or how psychotic people are, we, as therapists, try to look for that window of
normalcy; and there were certain little windows of normalcy that things she told me, I
knew were very true. Id. at 1469 (emphasis omitted). Another testified, In my opinion,
it appears that what occurred was: One, she was off her medication; [and] two, she
underwent emotional trauma that contributed to her psychotic symptoms. Id. (emphasis
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omitted). The same witness, when asked to distinguish between whats delusional from
what is accurate history as reported by the patient, responded that delusions are fixed
false beliefs which have no basis in reality and histories are well, if it makes sense, then
its [sic] not a delusion. Id. He then concluded that portions of the victims story were
consistent with a high likelihood that [an abduction] occurred. Id. (emphasis omitted).
In considering the admissibility of this testimony, we discussed at length an Eighth
Circuit case, United States v. Azure, 801 F.2d 336 (8th Cir. 1986), in which the court
reversed a conviction after a pediatrician testified that the victim was believable and that
he could see no reason why she would not be telling the truth. . . . Id. at 339. The
district court concluded that this statement was admissible under Fed. R. Evid. 702 as an
expert opinion; the Eighth Circuit disagreed. Id. at 339, 340-41. The Toledo panel
focused on the Eighth Circuits statement that an expert might permissibly testify about
a childs ability to separate truth from fantasy, [or] by summarizing the medical evidence
and expressing his opinion as to whether it was consistent with [the victims] story that
she was sexually abused. 985 F.2d at 1470 (quoting Azure, 801 F.2d at 340). We also
noted another Eighth Circuit decision that upheld a conviction in a case involving a child
psychologists testimony that it was not unusual for a child victim of sexual abuse to
link two traumatic events together, even though they did not actually occur at the same
time and that whether or not they were contingent in time they both occurred. Id.
(quoting United States v. Provost, 875 F.2d 172, 176 (8th Cir. 1989) (emphasis omitted)).
In light of these two cases, we held that the admissibility of the testimony in question
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here presents a close question and thus denied relief under the plain error standard. Id.
In United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), we held that a district
court did not err in admitting a pediatricians testimony that sexual abuse would provide a
unifying diagnosis for several of the victims physical and emotional problems, id. at
1263-64, but reached the opposite conclusion as to another experts statement of her
unconditional opinion that each of the girls was in fact sexually abused. Id. at 1266. To
the extent the opinion was based on crediting the girls account, whether disclosed to her
or others, it amounted to an expert essentially vouching for their truthfulness. Id. at
1267. We ruled that expert testimony which does nothing but vouch for the credibility
of another witness encroaches upon the jurys vital and exclusive function to make
credibility determinations, and therefore does not assist the trier of fact as required by
Rule 702. Id. However, we determined that the admission of the experts opinion was
harmless [i]n light of the strength of the properly admitted testimony. Id. at 1272.
In United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000), the same expert at
issue in Charley testified that if certain behavioral symptoms were present, she would be
comfortable forming a diagnosis of child sexual abuse and that she would base that
diagnosis on the childs statements about what had happened to them. 214 F.3d at 1209.
We declined to reach the issue of whether this testimony would have been admissible, id.
at 1211, but noted the experts assertion that she would base her diagnosis of child
sexual abuse on the childs statements about what had happened to them, appears to be
impermissible vouching for [the victims] credibility, id. at 1211 n.6 (quotation
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omitted). We reached the same conclusion as to a second experts testimony that she
found no evidence suggesting the victim was subject to either lying or overexaggerated
fantasizing in her life. Id. at 1211. The Velarde panel rejected a harmless error
argument and remanded for a new trial. Id. at 1212.
In United States v. Samara, 643 F.2d 701 (10th Cir. 1981), which we cited in
Toledo, 985 F.2d at 1470, we rejected a claim that an expert should have been permitted
to state an opinion that other witnesses were not credible. The government supported its
charges of income tax violations in that case with testimony from numerous witnesses
who paid legal fees to the defendant. Samara, 643 F.2d at 702. The government
summarized this evidence in an exhibit that showed a substantial amount of unreported
gross income. Id. The defendant sought to challenge that summary with his own expert
who prepared a competing exhibit purporting to show that certain items should be
deleted from the governments showing of gross receipts. Id. at 705. This expert based
the deletions on witness credibility because of felony convictions and lack of
documentation. Id. We affirmed the district courts exclusion of the exhibit and related
testimony on the ground that credibility was for determination by the jury, not by a
defense witness because [a]n expert may not go so far as to usurp the exclusive
function of the jury to weigh the evidence and determine credibility. Id. (quotation
omitted).
We have repeatedly affirmed the exclusion of expert evidence suggesting that a
defendant was likely to make a false confession. See United States v. Benally, 541 F.3d
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990, 995 (10th Cir. 2008); United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001).
And we denied habeas relief, under a de novo standard of review, on a claim that a state
court erred in excluding expert testimony stating certain child witnesses were not
credible. Gilson v. Sirmons, 520 F.3d 1196, 1243 (10th Cir. 2008). Each of these rulings
was based on the theory that the credibility of another is not an appropriate subject for
expert opinion testimony.
It appears our sibling circuits that have considered this issue have uniformly
agreed. See Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006) (An expert may not
opine on another witnesss credibility.); Nimely v. City of New York, 414 F.3d 381, 398
(2d Cir. 2005) ([T]his court, echoed by our sister circuits, has consistently held that
expert opinions that constitute evaluations of witness credibility, even when such
evaluations are rooted in scientific or technical expertise, are inadmissible under Rule
702.); United States v. Vest, 116 F.3d 1179, 1185 (7th Cir. 1997) (Credibility is not a
proper subject for expert testimony; the jury does not need an expert to tell it whom to
believe, and the experts stamp of approval on a particular witness testimony may
unduly influence the jury. (quotations omitted)); United States v. Gonzalez-Maldonado,
115 F.3d 9, 16 (1st Cir. 1997) (An experts opinion that another witness is lying or
telling the truth is ordinarily inadmissible pursuant to Rule 702 because the opinion
exceeds the scope of the experts specialized knowledge and therefore merely informs the
jury that it should reach a particular conclusion. (quotation omitted)); United States v.
Beasley, 72 F.3d 1518, 1528 (11th Cir. 1996) (Absent unusual circumstances, expert
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medical testimony concerning the truthfulness or credibility of a witness is inadmissible

. . . because it invades the jurys province to make credibility determinations.); United
States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) ([A]n expert witness is not
permitted to testify specifically to a witness credibility or to testify in such a manner as
to improperly buttress a witness credibility. (quotation and alteration omitted)); United
States v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995) ([E]xpert testimony can be properly
excluded if it is introduced merely to cast doubt on the credibility of other eyewitnesses,
since the evaluation of a witnesss credibility is a determination usually within the jurys
exclusive purview.).
Although the government acknowledges this courts jurisprudence on this point, it
contends that the case at bar is distinguishable in two crucial respects. First, the
government argues that the foregoing Tenth Circuit cases establish a rule that it is
impermissible for an expert to vouch for the credibility of a witness, but say nothing
about an experts opinion that a defendant is not credible. We disagree. Our opinion in
Toledo does not distinguish between pro- and anti-credibility opinions, stating instead
that [t]he credibility of witnesses is generally not an appropriate subject for expert
testimony. 985 F.2d at 1469. Moreover, the reasons noted for this rule are that such
testimony usurps a critical function of the jury, is not helpful to the jury, which can
make its own determination of credibility, and the testimony of impressively qualified
experts on the credibility of other witnesses is prejudicial and unduly influences the jury.
Id. at 1469-70. These rationales apply with equal force in the context of opinion
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testimony that attacks credibility. Further, the governments theory does not account for
our holdings affirming the exclusion of expert testimony indicating that other witnesses
or other out-of-court statements were not credible. See Benally, 541 F.3d at 995; Adams,
271 F.3d at 1246; Samara, 643 F.2d at 705.3
The government also seeks to distinguish our circuit precedent as a factual matter,
arguing that Stanley was not a witness at the trial and therefore the case at bar is not
analogous to the above-cited cases. It is true that Stanley did not testify; his recorded
out-of-court statements were played for the jury. But the Federal Rules of Evidence
provide that statements by in-court witnesses and out-of-court declarants should be
treated the same with respect to credibility: the declarants credibility may be attacked,
and then supported, by any evidence that would be admissible for those purposes if the
declarant had testified as a witness. Fed. R. Evid. 806. And our court has previously
applied the rule that expert opinion testimony is not a permissible form of evidence as to
a declarants credibility. In Bledsoe v. Bruce, 569 F.3d 1223 (10th Cir. 2009), we
considered whether counsel had been ineffective in failing to object to a detectives
testimony that he believed an out-of-court statement. Id. at 1237. After quoting Toledo,
and noting that the state court had determined counsels failure to object constituted
deficient performance because this was objectionable testimony that invaded the
3

In each of these cases, we reviewed the district courts ruling for an abuse of
discretion. A deferential standard of review is nonetheless sufficient to develop the
well-settled law, Edgar, 348 F.3d at 871 (quotation omitted), required to satisfy the
second prong of plain-error review.
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province of the jury, we held that the state courts conclusion that the error did not cause
prejudice was at least reasonable. Id. at 1237-38 (quotation omitted).
The government also contends that because Stanleys recorded statement was
played for the jury, and because Jones identified specific aspects of Stanleys statements
that were indicative of untruthfulness, his testimony assisted the jury rather than usurping
its role. The government cites United States v. Simpson, 7 F.3d 186 (10th Cir. 1993), in
which we stated that [w]hen an expert merely states an opinion on an ultimate issue
without adequately exploring the criteria upon which the opinion is based, the jury is
provided with no independent means by which it can reach its own conclusion or give
proper weight to the expert testimony. Id. at 188-89. We held that the district court did
not abuse its discretion in excluding testimony from a banking expert that certain
transactions amounted to concealment of funds, id. at 188, but noted it was a close
question, id. at 189. The government also relies on United States v. Zepeda-Lopez, 478
F.3d 1213 (10th Cir. 2007), in which we permitted an officers opinion that the voice on a
tape belonged to the defendant because the officer had reviewed the tape many times and
thus the testimony was helpful to [the jury] in deciding whether Mr. Zepeda-Lopez
appeared on the portion of the video tape played at trial. Id. at 1222. However, neither
of these cases involved an expert offering his opinion of the veracity of anothers
statements, which we have repeatedly held is not an appropriate subject for expert
testimony. Toledo, 985 F.2d at 1470. It was the subject, rather than the particular
manner, of Jones expert opinion testimony that was improper.
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We must also reject the governments characterization of Jones testimony as

merely providing to the jury expert tools to permit them to make their own credibility
determinations. First, much of the testimony asserted fairly obvious and commonly
understood issues of veracity. For example, Jones identified as indicators of mendacity
Stanleys attempt to steer the conversation away from questions he did not want to
answer and the changing of his story during the course of the interview. The reason the
issue of credibility belongs to the jury is that jurors are presumed to be fitted for it by
their natural intelligence and their practical knowledge of men and the ways of men.
Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891). A jury does not need an expert to
inform it that a witness who changes his story may be less than truthful.
We acknowledge that in some narrowly circumscribed situations, expert testimony
that touches on the issue of credibility might be properly admitted. For example, in
United States v. Shay, 57 F.3d 126 (1st Cir. 1995), the court held that a psychiatrist
should have been permitted to testify that the defendant suffered from a recognized
mental disorder known as pseudologia fantastica that caused him to tell false and selfaggrandizing stories. Id. at 129, 133-34. And in United States v. Hall, 93 F.3d 1337 (7th
Cir. 1996), the court ordered a new trial following the exclusion of expert testimony
suggesting that false confessions sometimes occur and that the defendant had a
personality disorder that makes him susceptible to suggestion. Id. at 1341. The court
held that [i]t was precisely because juries are unlikely to know that social scientists and
psychologists have identified a personality disorder that will cause individuals to make
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false confessions that the testimony would have assisted the jury in making its decision.
Id. at 1345. Similarly, our decision in Toledo dealt with psychiatric testimony regarding
the nature of delusions, 985 F.2d at 1469, and analogized to child psychiatry issues
outside the ken of a normal juror, id. at 1470.
As we explained in Adams, however, there is a wide gulf between that type of
specialized psychiatric knowledge, which one would not expect a jury to possess, and
testimony that merely asserts an opinion as to the veracity of an explanation that a jury
is capable of resolving without expert testimony. 271 F.3d at 1246 (citing Hall, 93 F.3d
at 1341 and Shay, 57 F.3d at 129-30). Jones testimony plainly fell into the latter
category, and thus impermissibly encroache[d] upon the jurys vital and exclusive
function to make credibility determinations. Id. (quoting Charley, 189 F.3d at 1267).
After being asked what he drew from the interview as to [Stanleys] truthfulness, Jones
stated that Stanley provided partial truths and continually sought to avoid the
question[s] asked of him. The prosecutor followed with a clearly inappropriate
question, inquiring, In reference to the substance of responses that were provided . . .
how does that factor into your observation of whether hes being truthful or not? Jones
then summarized the story Stanley provided and stated: It does not connect the dots.
That does not make sense. That is not something that I viewed as reasonable.
This testimony plainly violated Rule 702 and our case law interpreting the rule.
Even if Agent Jones arguably had specialized knowledge, Fed. R. Evid. 702(a), on the
subject of interrogations, his testimony on Stanleys credibility fails under Rule 702
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because it encroache[d] upon the jurys vital and exclusive function to make credibility
determinations, and therefore [did] not assist the trier of fact. Charley, 189 F.3d at 1267
(quotation omitted). He simply informed the jury that Stanleys version of events was
unworthy of belief based on his opinion of what is generally reasonable. We cannot
excuse his statement as a witness veering into non-responsive commentary; the
prosecutor specifically asked about the effect the substance of Stanleys responses had
on Jones observation of whether [Stanley was] being truthful or not.
Moreover, this exchange was not an isolated aside. Jones testimony as to
Stanleys credibility continued with Jones claiming that Stanleys references to his
subjective knowledge is a move that is common among the criminal element to keep law
enforcement at bay and not be able to determine the actual facts of what happened. The
prosecutor mischaracterized Stanleys statements in the video by asking whether it was a
demonstration of consciousness of guilt that an individual will want to die rather than tell
the truth.4 On the same topic of Stanleys claim that he would rather die than be
imprisoned, Jones stated, Never in my career have I seen that with an innocent person.
He also asserted that when people start bringing faith into validating of their statements,

A review of the video of the interview beginning at the 35 minute mark indicates
that it was Corporal Stout, not Stanley, who referred to preferring death rather than telling
the truth. Stouts follow up question to Stanleys statement that he would rather die
was: Youd rather die than tell us the truth? Stanleys response was, I am telling the
truth. Both the context of the exchange and the actual video of the interview confirm
that the questioning of Agent Jones at trial was premised on a misrepresentation of
Stanleys statements.
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that theyre deceptive. Those are deceptive statements.

Contrary to the governments claim, Jones testified flatly and repeatedly that, in
his expert opinion, Stanley was dishonest during his interview. Because our court has
clearly held that credibility [i]s for determination by the jury, and [a]n expert may not
go so far as to usurp the exclusive function of the jury to weigh the evidence and
determine credibility, Samara, 643 F.2d at 705 (quotation omitted), the admission of
this testimony meets the stringent standard of plain error. See United States v. ToroPelaez, 107 F.3d 819, 827 (10th Cir. 1997) (holding that only a particularly egregious
and obvious and substantial error qualifies as plain (quotation omitted)).
B
This conclusion does not end our inquiry. To obtain relief, Stanley must also
show that the plain error affected his substantial rights. United States v. TrujilloTerrazas, 405 F.3d 814, 818 (10th Cir. 2005). That is, he must demonstrate a reasonable
probability that but for the error claimed, the result of the proceeding would have been
different. Id. at 819 (quotation and alteration omitted). A reasonable probability is a
probability sufficient to undermine confidence in the outcome. United States v. Hasan,
526 F.3d 653, 665 (10th Cir. 2008) (quotation omitted). The reasonable-probability
standard is not the same as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but for error things would have
been different. United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2009)
(quotation omitted).
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The governments case against Stanley was far from airtight. Its best evidence
was Stanleys presence, shortly after the crime occurred, in his fathers home where he
claimed to have been sleeping in the living room. Officers discovered money stolen from
the bank in the homes kitchen, and clothing and a firearm consistent with those used in
the robbery in a bedroom.5 In many circumstances, such evidence standing alone might
qualify as sufficiently probative of guilt to conclude that the defendants substantial rights
were unaffected by the improper admission of opinion testimony. In this case, however,
the probative value of Stanleys presence at the East Pine residence is somewhat undercut
by the fact that Stanleys two brothers were also present at the home just after the
robbery. Vernon has already been convicted of charges relating to the robbery, and
Dejuan was also charged. The government expressly proceeded upon the theory that
those two brothers were the two individuals who entered the bank and that Stanley was
the getaway driver. It would have been reasonable for the jury to conclude that Vernon
and/or Dejuan robbed the bank and that Stanley simply had the bad luck to be present at
his fathers home when police surrounded it, especially given the absence of evidence
presented about the identity of the getaway driver. At Stanleys first trial, the
government proceeded on the theory that Stanley was present in the bank and the jury
5

The firearm discovered at the East Pine residence formed the basis of the felon in
possession charge. The jury was instructed that mere presence was insufficient to
establish possession, and that the government was required to prove some connection
between Stanley and the firearm. Absent any evidence tying Stanley to the gun (other
than the evidence suggesting he was involved in the bank robbery), we conclude that the
firearm conviction must stand or fall with the other convictions.
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deadlocked on the charges against him.

The government draws our attention to the cell tower evidence, which was not
introduced at the first trial. But the phone most closely tied to Stanley by the evidence,
with a number ending in 1576, did not produce much in the way of incriminating
information. That phone was registered to Landrum and was listed by both Stanley and
Dejuan as a contact number. It was located near Arvest Bank the night before the
robbery, but the tower servicing the bank covered a fairly large area of Tulsa and was
very near Landrums home. On the morning of the robbery, the 1576 phone was located
first near the East Pine residence, then near Landrums home, when it exchanged calls
with the two other phones discussed at trial. At the time of the robbery, it was turned off.
The phone registered to Vernon, and the other phone registered to Landrum, with
a number ending in 3860, told a more compelling story. Those phones contained data
strongly suggesting that they were used by a bank robber and a nearby getaway driver,
and this theory was supported by eyewitness testimony. Jones testified that he believed
Dejuan was carrying the 1576 phone and that Stanley was carrying the 3860 phone, but
the prosecution did not cite any evidence supporting the assertion that Stanley had the
3860 phone. Further, the 3860 phone was tracked moving away from the East Pine
residence at the time Stanley and Vernon were holed up in that house. Jones professed
his belief that Dejuan obtained that phone from Stanley just after the robbery, but there
was no evidence advanced to support this supposition. The cell tower testimony was not
significantly probative of Stanleys involvement.
-29-

The government also points to the recorded phone calls Stanley made from jail. In
one call, Landrum mentions a discussion in which Stanley was referred to as the weak
link of the group. The government argues that this is evidence of conspiracy, but it may
simply refer to Stanleys fortitude in dealing with incarceration. In another call,
Stanleys father warns him not to say nothing to do with what they holding yall for . . .
dont say where you was. Given that Stanleys brother was jailed on the same charges,
this statement is hardly definitive proof of Stanleys involvement. Stanleys father may
simply be telling Stanley to exercise his Fifth Amendment rights in an effort to protect
his children.
In addition to the foregoing evidence, the government relies on Stanleys lack of
candor when apprehended. He falsely identified himself when arrested. When
confronted, he became tearful and provided his true identity only after being moved away
from his brother Vernon. And it is clear that Stanley behaved evasively in his interview
with Jones. He claimed not to know Landrums address. And he stated that he was
planning to watch his stepsister, but said he did not know the name of the girls mother.
We must view Stanleys evasiveness during the interview in light of the fact that he knew
his brother was also seized from the home. The jury may well have concluded that
Stanley was wary of saying anything if he knew or suspected that Vernon and/or Dejuan
had committed a crime. Indeed, Stanleys father later advised him to keep quiet,
reminding Stanley, you know were family, we stick together.
The government also argues Stanleys claim that he was sleeping through the
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relevant events is implausible. It points to an officers testimony that the oven drawer in
which the robbery proceeds were secreted was loaded with pots and pans, and that he
could hear other officers struggling to open the drawer from the room in which Stanley
claimed to be sleeping. Of course, an individual stashing robbery proceeds would likely
attempt to keep quiet, whereas a group of officers executing a search warrant would have
no need for stealth. And as noted above, a jurys finding that Stanley attempted to avoid
disclosing his full knowledge during the interview does not mandate a conclusion that he
conspired to rob Arvest Bank.6
In light of this evidence, we conclude that there is a reasonable probability that but
for Jones improper testimony, the result of Stanleys trial would have been different.
Jones testimony directly contradicted Stanleys wrong place, wrong time theory. He
informed the jury that despite conducting more than a thousand interviews, he had
[n]ever in [his] career seen an innocent person display the behaviors exhibited by
Stanley. Jones opined: I also dont reasonably believe an innocent person would
behave as Stanley did. And he described Stanleys reliance on subjective knowledge and
appeals to religion as common among the criminal element and something done by
somebody with guilt. In closing arguments, the government asked the jury to rely on
Jones expertise: Agent Jones, in scrutinizing this interview with Stanley Hill, he talks
6

We note that the jury was not instructed that it could convict based on a
conspiracy to act as an accessory after the fact. See United States v. Lang, 364 F.3d
1210, 1223-24 (10th Cir. 2004) (discussing this theory), vacated on other grounds, 543
U.S. 1108 (2005).
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about how in his approach to interviewing and interrogation, sometimes he has to piece
through, he has to figure out whats truthful in this interview, whats he trying to hide.
The government urges us to disregard the plainly erroneous admission of Jones
testimony because the jurors were instructed that they were the judges of the facts and
the sole judges of the credibility or believability of each witness. Jurors are presumed
to follow their instructions. United States v. Almaraz, 306 F.3d 1031, 1037 (10th Cir.
2002). But the instructions considered as a whole tend to exacerbate the erroneous
admission of Jones expert opinion. They stated that Jones was permitted to express his
opinions regarding investigation of conspiracies and robberies based on his
knowledge, skill, experience, training or education, and that his testimony concerned
scientific, technical, or other specialized knowledge.
Although the jury was instructed that it was not required to accept the expert
opinion testimony offered, the danger of such testimony on the subject of credibility is
not that the jury will be misled into thinking the issue is outside its bailiwick, but that
the testimony of impressively qualified experts on the credibility of other witnesses is
prejudicial and unduly influences the jury. Toledo, 985 F.2d at 1470. During his
testimony, Jones sought to burnish his credentials. He told the jury that he had attended
specialized courses including the Reid school, which is a higher-level school of
interrogation and interviewing. He stated that the Reid school trained him in special
tactics and ways to identify on deception in statements and truths in statements and that
the training was sought-after . . . because of the caliber of that training you do get
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towards that endeavor.

In light of the complete record before us, we conclude that Stanley has carried his
burden of showing a reasonable probability that the result of his trial would have been
different without the impermissible testimony. Although the prosecution presented a
reasonable theory, the likelihood that the jury was unduly swayed by Jones improper
testimonyand would not have found Stanley guilty beyond a reasonable doubt absent
that testimonyis high enough to undermine our confidence in the result of the trial. See
Hasan, 526 F.3d at 665.
C
Having concluded that Stanley has satisfied the first three prongs of plain-error
review, we must consider whether to exercise our discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Begaye, 635 F.3d 456, 470 (10th Cir. 2011) (quotation omitted). [A]
plain error affecting substantial rights does not, without more, satisfy the . . . standard, for
otherwise the discretion afforded by Rule 52(b) would be illusory. United States v.
Olano, 507 U.S. 725, 737 (1993).
We hold that this case warrants reversal under this standard. As discussed supra,
Stanley has shown a reasonable probability that but for the erroneously admitted
testimony, he would not have been convicted. We have stated that the key concern in
considering whether to correct unobjected-to sentencing errors at the fourth prong of
plain error review is if correct application of the sentencing laws would likely
-33-

significantly reduce the length of the sentence. United States v. Brown, 316 F.3d 1151,
1161 (10th Cir. 2003); see also United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir.
2011) (applying this rule to correct a five-month sentencing discrepancy). We have also
elected to reverse in several plain error cases in which the district court entered an
impermissibly large restitution order. See United States v. Gordon, 480 F.3d 1205, 1212
(10th Cir. 2007) (collecting cases and rejecting governments argument on prong four).
In contrast, we have declined to exercise our discretion in favor of defendants sentenced
under a mandatory sentencing Guidelines regime who sought to challenge their sentences
following the Supreme Courts holding that the Guidelines were merely advisory. We
held that the mere fact of mandatory application during a time when the law required it
did not offend core notions of justice. United States v. Gonzalez-Huerta, 403 F.3d 727,
738-39 (10th Cir. 2005) (en banc).
The consequences of ignoring the error in this case may be significantly more
severe than the sentencing and restitution cases cited above; upon retrial without Jones
testimony (assuming the other evidence remains roughly similar), there is a reasonable
probability that Stanley will not be convicted at all. However, the Supreme Court has
indicated that this factor standing alone does not necessarily compel reversal. See Olano,
507 U.S. at 737.
It is the nature of the error at issue in this case that leads us to conclude that
ignoring it would offend core notions of justice and seriously affect the fairness, integrity,
and public reputation of judicial proceedings. A law enforcement agent informed the jury
-34-

that he was specially trained in ferreting out lies, and the instructions the jury received
from the district court essentially confirmed that claim. The agent testified that in his
expert opinion the defendants story was unworthy of belief and that the defendants
evasive behavior demonstrated guilt. Such testimony is intolerable under our system of
jurisprudence, which has long recognized jurors ability and sole responsibility to
determine credibility. See Aetna Life Ins. Co., 140 U.S. at 88; Samara, 643 F.2d at 705.
Perhaps even more troublingly, Jones lengthy testimony was repeatedly incited by
improper questions from the prosecutor, who inquired whether Jones believed the
substance of Stanleys statements and mischaracterized those statements in asking
whether they indicated that Stanley was guilty.
We cast no blame on the district court for the error that occurred in this case and
warn the defense bar that reversal in the absence of contemporaneous objection is a rare
exception rather than the rule. We nonetheless must conclude that Stanley has satisfied
all four prongs of the plain error standard and is entitled to relief.
III
For the foregoing reasons, we REVERSE and REMAND with instructions to
VACATE Stanley Hills convictions and sentence.

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