introduction of Zamastil’s confession to murdering Johnson right before his

statement that “he liked killing people.”

3. We review for clear error the district court’s determination whether

parties were engaged in plea discussions, for purposes of FRE 410 and Federal

Rule of Criminal Procedure 11. United States v. Guerrero, 847 F.2d 1363, 1367

(9th Cir. 1988). A statement to a U.S. Attorney is inadmissible when made in the

course of plea discussions “if (1) the suspect exhibited an actual subjective

-3- expectation that [he] was negotiating a plea at the time of the discussion and (2)

[his] expectation was reasonable given the totality of the circumstances.”1 United

States v. Sayakhom, 186 F.3d 928, 936 (9th Cir. 1999).

We cannot say the district court clearly erred in finding plea discussions

began after May 20, 1981. Zamastil’s alleged expectation that earlier conversations

constituted plea discussions contradicts his attorney’s June 30, 1981 letter stating

that Zamastil did “not wish to enter into negotiations” with the U.S. Attorney’s

office. (Emphasis added). Further, the district court’s finding that Zamastil’s

subjective expectation was unreasonable cannot be clear error. Indictment was not

imminent; U.S. Attorney Bates Butler’s letter inviting Zamastil to provide

information did not inquire into the Shaner murder; and the record evidenced that

Zamastil learned after May 20, 1981 of the letter from the U.S. Attorney’s office to

Zamastil’s attorney asking him to proffer Zamastil’s Shaner murder testimony. See

id.

1 FRE 410 and Federal Rule of Criminal Procedure 11 do not apply to Zamastil’s statements to FBI Agent William Doss. “[O]nly statements during the course of plea negotiations with a government attorney, not statements made to law enforcement agents generally, are inadmissible.” United States v. Sitton, 968 F.2d 947, 957 (9th Cir. 1992) (abrogated on other grounds by Koon v. United States, 518 U.S. 81, 96-100) (1996)). -4- Reviewing de novo Zamastil’s Miranda waiver claim, United States v.

Brobst, 558 F.3d 982, 995 (9th Cir. 2009), we find no error. Zamastil admits there

is no authority directly supporting his argument.

Reviewing de novo the district court’s determination that Zamastil’s

statements to law enforcement officers were voluntary under the totality of the

circumstances, we find that Zamastil’s confessions were voluntary, not “obtained

. . . by physical or psychological coercion or by improper inducement so that

[Zamastil’s] will was overborne.” Guerrero, 847 F.2d at 1365-66. Doss advised

Zamastil of his constitutional rights during each interview; Doss did not promise

leniency in exchange for information; and Zamastil had experience with the

criminal prosecution system.

4. The district court did not abuse its discretion by declining to give an alibi

instruction. See United States v. Hairston, 64 F.3d 491, 493 (9th Cir. 1995). For his

argument, Zamastil relies on evidence that was not alibi evidence, because no time

or place was specified for the photo Zamastil had mentioned but never produced.

5. The district court did not abuse its discretion in finding “the instructions

as a whole [were not] misleading or inadequate to guide the jury’s deliberation.”

United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th Cir. 2003) (citation

omitted). The jury instructions adequately covered the jurisdictional element,

-5- stating three times that the government had to prove beyond a reasonable doubt

that the killing had occurred on Fort Huachuca. Instruction regarding where a

murder is deemed to occur was unnecessary. No evidence at trial suggested that an

injury causing death occurred somewhere other than Fort Huachuca, and Shaner

died at Fort Huachuca.

Reviewing de novo, we also do not find that the instructions failed to

“adequately present [Zamastil’s] theory of the case.” See United States v. Liu, 538

F.3d 1078, 1088 n.5 (9th Cir. 2008). Zamastil’s theory that he had killed Shaner

elsewhere and merely buried her body at Fort Huachuca, was adequately covered

by the jurisdictional instructions given.

6. We review prosecutorial statements to which the defendant does not

object for plain error. United States v. Brown, 327 F.3d 867, 871 (9th Cir. 2003).

The district court did not plainly err by allowing the government to briefly question

about Zamastil refusing to provide his biological samples absent a search warrant,

or by permitting the government to reference the search warrant’s execution in its

closing argument. Because it is improper for a prosecutor arguing to the jury to

“note[] that [a defendant] did not consent to a search” by law enforcement, United

States v. Taxe, 540 F.2d 961, 968-69 (9th Cir. 1976), the government referencing

the search warrant in closing argument may have been error. However, this

-6- potential error was not “clear and obvious” under established law. See United

States v. Romero-Avila, 210 F.3d 1017, 1022 (9th Cir. 2000). Our precedent does

not bar evidence of a defendant’s possible refusal to consent to a search due to

such evidence’s admission violating the defendant’s Fourth Amendment rights, or

the government’s bare mention of a search warrant in its closing argument.

7. A general verdict withstands a sufficiency of the evidence challenge if the

evidence was sufficient with respect to any one alternate basis of liability. See

Griffin v. United States, 502 U.S. 46, 56-57 (1991). Zamastil’s sufficiency of the

evidence claim fails, because he only challenged one alternate basis of liability (i.e.

felony-murder predicated on rape).

8. Finally, the cumulative effect of any alleged errors does not prejudice

Zamastil. See United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir. 2004).

If there were errors, we cannot say the jury would have acquitted Zamastil had

these errors not occurred, when the jury could still rely on evidence of the Johnson

rape and murder and Zamastil’s many confessions.

The judgment of the district court is AFFIRMED.

-7-

FILED

United States v. Zamastil, 11-10560 DEC 20 2013

MOLLY C. DWYER, CLERK

SILVERMAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent.

Federal Rule of Evidence 410 says that “a statement made during plea

discussions with an attorney for the prosecuting authority” is “not admissible

against the defendant.” Fed. R. Evid. 410(a)(4). See also Fed. R. Crim. P. 11(f)

(“The admissibility or inadmissibility of a plea, a plea discussion, and any related

statement is governed by Federal Rule of Evidence 410.”).

Zamastil was visited in his Wisconsin prison by FBI Agent William Doss on

June 19, 1980 and September 5, 1980 to discuss his potential involvement in the

murder of Leesa Jo Shaner. At these sessions Zamastil expressed his desire to

negotiate a plea deal involving concurrent sentencing. Agent Doss informed

Zamastil that he had no authority to negotiate a deal but would check with the

prosecutors. Up to this point, as United States v. Sitton, 968 F.2d 947 (9th Cir.

1992) makes clear, no plea negotiation had started. See id. at 956-57.

The situation changed on October 2, 1980. In response to Zamastil’s request

to work out a deal, Assistant U.S. Attorney Bates Butler sent the following letter to

Zamastil:

I have been informed by the Federal Bureau of Investigation that you possess information pertaining to homicides which may have occurred in Southern Arizona. While I am willing to consider some negotiated -2- agreement in which I would seek a concurrent sentence for you if the information you provided incriminated you in other homicides, you have not yet provided sufficient information upon which I can base a decision. I have spoken with W. Randolph Stevens, Jr., Chief Criminal Deputy Pima County Attorney, and he agrees with me.

Mr. Stevens and I are unwilling to “buy a pig in a poke.” Before we make any commitments for our respective jurisdictions we will need some proffer from you about the incident about which you possess information. We need to know whether or not you were the individual in any situation who actually committed the act which directly resulted in an individual’s death. In other words, what was the extent of your involvement in these homicides?

Upon receipt of preliminary information from you, I will consult with Mr. Stevens about whether any deal can be made with you for a concurrent sentence.

This letter itself says that it is in furtherance of a possible negotiated agreement and

it specifically invited Zamastil to make a “proffer” of the information he possessed.

Not only that, Butler stated that he was also acting on behalf of the local Pima

County prosecutor with an eye towards a package deal involving both jurisdictions.

Following up on that letter less than a month later, Agent Doss again visited

Zamastil at the Wisconsin prison. As the government itself describes this October

29, 1980 visit, “[Doss] read defendant his ‘Miranda rights.’ Defendant stated that

he would waive his rights for the limited purpose of providing additional

information. Doss explained that prosecutors in Arizona did not have enough

information to made a determination and asked him to be more specific.” -3- Government Brief at 14 (emphasis added).

Once the prosecutors became involved, directly communicated with

Zamastil, invited him to make a proffer in aid of reaching a deal, and allowed him

to make a limited waiver to provide prosecutors with information they would need

to reach an agreement, there is only one way to interpret these undisputed events:

negotiations had begun. True, no deal had yet been reached nor had an offer been

tendered – they were only in the initial “Whaddya got?” stage of the negotiation

dance. There is no question, however, that the dance was under way. As a result,

all of Zamastil’s statements made to Doss and Butler after Butler’s October 2, 1980

letter – i.e., the “limited purpose” statements he made to Doss on October 29, 1980

and the letters he sent to Doss and Butler on May 20, 1981 – should have been

deemed inadmissible under Rule 410.1

1 The majority concludes that, even if plea negotiations began on October 2, 1980, Rule 410 still would not exclude Zamastil’s statements to Doss because the rule only applies to statements “made during plea discussions with an attorney for the prosecuting authority.” Fed. R. Evid. 410(a)(4) (emphasis added). But, as other courts have held, it would be overly formalistic to read Rule 410 as only ever applying when the attorney is actually physically present for the negotiations. See, e.g., United States v. Ross, 588 F. Supp. 2d 777, 783-84 (E.D. Mich. 2008) (“It is the involvement of a government attorney in the negotiation process, not his physical presence at the debriefing, that triggers the application of Rule 410.”) (emphasis in original). When, as here, an Assistant U.S. Attorney demands a proffer of evidence and then an FBI agent shows up four weeks later, it is reasonable for a defendant to conclude that his discussions with the agent are part of that proffer. -4- Moreover, this error cannot be considered harmless because it is not “more

probable than not that [it] did not materially affect the verdict.” United States v.

Gonzalez–Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). Three pieces of evidence

were admitted in error: Zamastil’s “limited purpose” statements to Doss on October

29, 1980; Zamastil’s letter to Doss on May 20, 1981; and Zamastil’s letter to Butler

on May 20, 1981. Included in that evidence was the first time Zamastil mentioned

Ms. Shaner by name (“Leesa Jo” in the letter to Doss and “Miss Shaner” in the

letter to Butler), the first time he mentioned her body being left in the desert, and

his statement that “I really feel that eight years is long enough to keep this in my

nightmares.” Indeed, that last statement was considered so pivotal that it was both

the first line and the last line of the government’s opening argument at trial. Given

the importance of this evidence, it more probable than not that the error in admitting

it materially affected the verdict.

I would reverse.

Moreover, the holding in Sitton, which the majority relies on, is distinguishable on this point. In that case, the Defendant sought to exclude statements made to the police the day after he was arrested and before there was any involvement by a prosecuting attorney. Sitton, 968 F.2d at 956-57. Indeed, Sitton itself specifically left open the question of whether the principle in Rule 410 applies “to situations in which a law enforcement officer ‘with express authority from a government attorney’ enters into negotiations with a defendant.” Id. at 957 (quoting United States v. Lawrence, 952 F.2d 1034, 1037 (8th Cir. 1992)).