Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^* 

Justine Batt appeals her conviction for aggravated sexual abuse. We affirm.

DISCUSSION

Batt argues that the district court erred when it denied her motion in limine to exclude a forensic report which the prosecution disclosed to her a week before trial. In the alternative, Batt asserts that the district court should have granted her more time to prepare her case in light of the report. Batt seems to premise both arguments on the ground that the forensic report would have tended to negate her guilt.

We affirm the district court's decision to deny Batt's motion in limine. On appeal, Batt seems to argue that the forensic report was either Brady exculpatory material itself or could have led to Brady material and that therefore the report should have been disclosed earlier. However, Batt has made no showing that the forensic report was exculpatory, or that examination of it would have led to exculpatory material. Indeed, we are unable to see how the forensic report can now be exculpatory when before the district court Batt seemed to premise her motion on the ground that the forensic report was highly prejudicial. Moreover, disclosure of the forensic report a week before trial still gave Batt ample time to take advantage of whatever exculpatory value the report may have had. See United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) ("No violation [of the Brady rule] occurs if the evidence is disclosed to the defendant at a time when the disclosure remains of value").

Batt argues that the district court erred when it admitted Exhibits 8, 9, and 10.

We conclude that the district court did not err when it admitted these exhibits. Exhibit 8 is a photograph of Batt's co-defendant attacking Eastman. Exhibit 9 is a photograph which depicts Batt using a dildo on Eastman. Exhibit 10 is a dildo. All three exhibits constitute relevant evidence because they corroborate Eastman's testimony about the attacks upon her. See Fed.R.Evid. 401. The exhibits' probative value in corroborating Eastman's testimony outweighed any danger of unfair prejudice; and therefore, the district court did not err in admitting these exhibits. See Fed.R.Evid. 403.

Batt asserts that the district court erred when it rejected her directed verdict motion.

We conclude sufficient evidence supports the jury's verdict. Eastman testified against Batt. She testified that Batt held her down while Batt's co-defendant raped her. Eastman also testified that Batt assaulted her with dildos, one of which gave Eastman an electric shock. Eastman told the jury that Batt and her co-defendant took pictures of their assault on Eastman.

Batt's sister corroborated Eastman's testimony when she testified that Batt had left at her home a bag containing Eastman's clothes and sexually explicit pictures. In addition, exhibits corroborated Eastman's testimony. The government introduced pictures consistent with Eastman's testimony. These photographs included one depicting Batt using a dildo on Eastman. Moreover, Eastman's physical injuries were consistent with devices found at Batt's home.

Batt contends that the district court violated her confrontation clause rights when it refused to allow her co-defendant to ask leading questions to examine witness Skinner.

We conclude that the district court did not violate Batt's confrontation clause rights. Batt rests her claim on the district court's behavior toward her co-defendant. However, Batt lacks standing to complain about how the district court may have restricted her co-defendant's confrontation clause rights. Moreover, Batt does not assert that the district court in any way restricted her examination of witness Skinner. In particular, Batt does not contend that the district court so restricted examination as to prevent the jury from gathering sufficient information about witness Skinner's biases and motivations. Under these circumstances, we conclude there was no violation of Batt's right to confront witness Skinner. See United States v. Jenkins, 884 F.2d 433, 436 (9th Cir.) (to violate the confrontation clause, the district court's restrictions on examination of the witness must be so severe as to prevent the jury from having sufficient information to judge the witnesses' biases and motivations), cert. denied, 110 S. Ct. 568 (1989).

Batt argues that the government went beyond the proper scope of cross-examination and violated Federal Rule of Evidence 611 when it cross-examined Batt about a photograph depicting dildos found at Batt's house. Batt also alleges that exceeding the scope of proper cross-examination under Rule 611 violated her confrontation clause rights. Thus, under Batt's formulation of her confrontation clause claim, violations of her confrontation rights depend upon a violation of Rule 611.

We conclude the government violated neither Federal Rule of Evidence 611 nor the confrontation clause. On direct examination, Batt testified that both she and her co-defendant used dildos on Eastman. Therefore, under Rule 611 the government could ask Batt questions on cross-examination relating to the use of dildos because such use was a subject matter raised on direct examination. See Fed.R.Evid. 611. Because we conclude that the government's questioning on cross-examination fell within the scope of Rule 611, we also reject Batt's confrontation clause claim.

Batt contends that the indictment was insufficient because it failed to notify Batt adequately of the charges against her. She rests this allegation on the assertion that the indictment charged her with a section of the United States Code that has nothing to do with aggravated sexual abuse.

We conclude that the indictment is sufficient. The indictment for count 2, the offense for which the jury convicted Batt, charges Batt under 18 U.S.C. §§ 1153 & 2241(a). Section 1153 provides for exclusive federal jurisdiction of the offense at issue in this case. Section 2241(a) contains the elements of the offense--aggravated sexual abuse--for which the jury convicted Batt. We assume that Batt is complaining about the charging of section 1153 as that section does not contain the elements of aggravated sexual abuse. The government committed no error in charging Batt under section 1153. That section provides the jurisdictional basis for the government's charge and thus the government needed to include it in the indictment. In any event, our reading of the indictment indicates that it adequately notified Batt of the charges against her. Because we determine there was no error in charging Batt with section 1153 and the indictment adequately notified Batt of the charges against her, we find the indictment sufficient. See United States v. Thomas, 893 F.2d 1066, 1070 (9th Cir. 1990), petition for cert. filed (Apr. 9, 1990).

Batt argues that the district court erred by suggesting to the jury that Eastman's actions indicated she could not have consented to the alleged attacks. Batt asserts that this suggestion is contained in the following comment:

In determining whether the matter was consensual or whether it was against [Eastman's] will, I think you must take into consideration the condition of [Batt] immediately after the act, the thing that she did along with all the other evidence, to see if those can be harmonized with consen [t] or whether they establish that the act was against [Eastman's] will.

We conclude the district court did not make an improper suggestion in its remarks. The district court merely told the jury that what Batt did after the incident could be probative in determining whether Eastman consented. Moreover, the district court made it clear to the jury that it was the jury's job, not the court's, to weigh the evidence in the case. Under these circumstances, we determine the district court's comments did not constitute error. See United States v. James, 576 F.2d 223, 228 (9th Cir. 1976) (comments constitute error when they leave the jurors with the impression they were not free to perform their traditional fact-finding function).

Batt contends that the district court erred when it failed to give the jury an instruction on whether Eastman consented to the sexual acts performed.¹ 

Batt's claim fails for two reasons. First, Batt failed to submit her jury instruction on consent in accordance with the local rules. See United States v. Federbush, 625 F.2d 246, 253 (9th Cir. 1980) (no abuse of discretion where defendant failed to submit jury instructions in accordance with the local rules). Under the Local Rule of Procedure for the District of Idaho 3-108, proposed written jury instructions in a criminal trial must be filed five days prior to trial. Batt did not file any jury instructions until the day before trial, and those instructions did not include one on consent. On the first day of trial, Batt gave the government's attorney a proposed instruction on consent, but she failed to file it with the court.

Second, although the district court refused Batt's precise instruction, it still instructed the jury on Batt's theory of the case--Eastman consented--in its instructions. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir. 1989) ("It is not error, however, to reject a theory-of-the-case instruction if the other instructions in their entirety cover the defense theory."), cert. denied, 110 S. Ct. 3237 (1990). The district court instructed the jury that in order to convict Batt it must find that the penetration occurred "against [Eastman's] will." The district court also instructed the jury that to find Batt guilty of aggravated sexual abuse it had to find that Batt used "force" against Eastman. Given this language in the instructions, the jury could not have found that Batt committed the offense and at the same time believed that Eastman consented.

Batt asserts that the district court abused its discretion when it denied Batt's motion to sever.

We conclude the district court did not abuse its discretion when it denied Batt's motion to sever. While Batt has alleged the joint trial was prejudicial, she has not shown to this court that the joint trial was so prejudicial as to require severance. Moreover, our own examination of the record reveals no prejudice warranting severance. Under these circumstances, we affirm the district court's decision denying the motion to sever. See United States v. Castro, 887 F.2d 988, 996-997 (9th Cir. 1989).

AFFIRMED.