Unpublished Disposition, 916 F.2d 717 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 916 F.2d 717 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Larry REDHOUSE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Raymond JOHN, Defendant-Appellant.

Nos. 89-10565, 89-10570.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1990.Decided Oct. 18, 1990.

Before CHOY, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

After a jury trial, Larry Redhouse and Raymond John were convicted of aggravated sexual abuse of Anna Thomas, a fourteen-year-old girl. Redhouse and John were found not guilty of sexual abuse of a minor. The jury did not reach a verdict on charges that the defendants kidnapped Thomas, and those charges were dismissed by the court. Redhouse and John appeal. We affirm.

1. Failure to Instruct on Lesser-Included Offense

The district court did not err in refusing to instruct the jury on abusive sexual contact. Abusive sexual contact is not a lesser-included offense of either aggravated sexual abuse or sexual abuse of a minor. See United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990). Abusive sexual contact requires proof of a specific intent not required for either aggravated sexual abuse or sexual abuse of a minor. See id.

The district court also did not err in refusing to instruct the jury on sexual abuse. Sexual abuse requires proof of a threat, an element not required for sexual abuse of a minor. Compare 18 U.S.C. § 2242 (1988) (sexual abuse) with 18 U.S.C. § 2243 (1988) (sexual abuse of a minor). Nor is sexual abuse a subset of aggravated sexual assault. Sexual abuse requires a type of threat specifically different from the type of threat required for aggravated sexual abuse. Compare 18 U.S.C. § 2242 (1988) (sexual abuse) with 18 U.S.C. § 2241 (1988) (aggravated sexual abuse). Consistent with Sneezer, we conclude that sexual abuse is not a lesser-included offense of either aggravated sexual abuse or sexual abuse of a minor.

Appellants are correct that the Eighth Circuit has adopted a rule different from that enunciated by this court in Sneezer. See United States v. Demarrias, 876 F.2d 674, 676-77 (8th Cir. 1989). We, of course, are bound by Sneezer.

2. Failure to Instruct on "Knowingly"

Appellants argue it was error for the district court not to define for the jury the term "knowingly," and that this error was particularly egregious because "knowingly" was not alleged in the indictment as an element of aggravated sexual abuse, the only offense of which the defendants were convicted. "Knowingly" was included in the indictments as an element of sexual abuse of a minor, of which the defendants were acquitted.

Jury instructions are to be reviewed as a whole to determine whether they are misleading or inadequate to guide the jury's deliberation. United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir. 1989). Here, the court instructed the jury that for the defendants to be found guilty of aggravated sexual abuse, the government had to prove beyond a reasonable doubt that the defendants "knowingly used force to cause Anna Thomas to engage in a sexual act." Reporter's Transcript (RT) Vol. IV at 90.

Although the court did not define "knowingly," it did not have to. The word "knowingly" is a common word of ordinary meaning. Moreover, in pretrial statements, both of the defendants admitted having had sexual intercourse with the victim at the time of the offenses charged. Neither defendant testified at trial. Neither asserted at trial that he had acted "unknowingly" or proffered any defense on this theory.

We conclude that the jury could not have been in doubt as to the meaning of the word "knowingly." That the defendants were acquitted of sexual abuse of a minor, in which "knowingly" was included as part of the charge in the indictments, does not affect this conclusion. The court adequately instructed the jury that the government had to prove beyond a reasonable doubt that the defendants "knowingly" committed the offenses charged.

It is unclear from the defendants' briefs on appeal whether they contend that omission of the word "knowingly" from the allegations of aggravated sexual abuse in the indictments requires reversal because the indictments failed to give them sufficient notice of the charges against them. See United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855 (1986). We construe the defendants' briefs as presenting this argument, and we reject it.

The indictments leave "no doubt that [the defendants were] fully aware of the charges against [them] and [were] able to prepare an adequate defense to the charges based upon the information in the indictment." United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986). See also United States v. Thomas, 893 F.2d 1066, 1070 (9th Cir.), petition for cert. filed, --- U.S.L.W. ---- (U.S. Apr. 9, 1990) (No. 89-7208) (although indictment did not charge that the defendant knowingly transported or mailed pornography, the indictment was sufficient where another part of the indictment charged that the defendant had knowingly produced child pornography knowing it would be mailed). Here, the indictments charged the defendants with knowingly committing the offense of sexual abuse of a minor. The indictments referred to the code section for this offense and to the code section for the offense of aggravated sexual abuse. Both code sections include "knowingly" in defining their respective crimes.

We conclude that the indictments, read as a whole, adequately apprised the defendants of the charges against them and were legally sufficient. See Normandeau, 800 F.2d at 958.

The district court did not err in permitting Dr. Kaufman to testify that certain injuries which Anna Thomas sustained (1) could only have been caused through forcible and probably repeated sexual assault, (2) were consistent with attempted forcible anal intercourse, and (3) were consistent with forcible trauma to the vagina.

A district court has broad discretion to admit or exclude expert testimony. United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989). The testimony summarized above was relevant and highly probative as to the use of force and the occurrence of a sexual act, two of the elements of aggravated sexual abuse. Dr. Kaufman's opinions were based on physical evidence which she observed, and on her qualifications as an expert. Her qualifications were not challenged. The court did not abuse its discretion in admitting this evidence.

The appellants also argue that the district court abused its discretion by permitting Dr. Kaufman to testify to the effect that in her opinion Anna Thomas was a virgin prior to this incident. The testimony was properly admitted to explain the seriousness of Anna Thomas' injuries, a circumstance that tended to establish the aggravated nature of the attacks upon her.

However, even if we assume the district court erred in admitting this testimony, the error was harmless in view of the overwhelming evidence of the defendants' guilt. John admitted that he raped Anna Thomas. Redhouse admitted he had sexual intercourse with Thomas, but claimed she consented. Thomas identified Redhouse and John as two of her assailants. The witness Benally described the attacks on Thomas and identified Redhouse and John as two of the persons who raped her. Finally, there was medical evidence which corroborated the fact that Thomas had been brutally raped.

Applying the test of Neil v. Biggers, 409 U.S. 188, 199 (1972), we conclude that even if the photographic lineup was unnecessarily suggestive, in light of the totality of the circumstances, Thomas' identification of Redhouse and John was reliable. See id. at 199-200.

During the daylight rapes, Thomas had a blanket over her head, but she testified the blanket slipped off and she saw who raped her. "She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." Id. at 200. Her degree of attention was surely great. Although she was not able to give a specific description of any individual involved in the rapes at the time the incident was investigated, her level of certainty in identifying Redhouse and John at the time of trial was high. The time that elapsed between the rapes and the confrontation at trial (over a month) was not too remote. See United States v. Barron, 575 F.2d 752, 755 (9th Cir. 1978) (two months delay).

Weighing the Biggers factors against any possible corrupting effect from Thomas having been shown the photographic display prior to trial, we are persuaded that Thomas' in-court identification of Redhouse and John was the product of her observations at the time she was raped and not the result of the pretrial photographic identification procedure. See United States v. Field, 625 F.2d 862, 866-68 (9th Cir. 1980).

We conclude that the district court did not abuse its discretion in permitting Thomas to identify Redhouse and John in court at the time of trial.

During Investigator Ahkea's testimony, Ahkea read a redacted portion of Redhouse's statement: "I walked about one-fourth of a mile and Raymond and Nino approached...." The reference to Raymond was to the defendant Raymond John.

Ahkea's testimony that Redhouse had told him John was present on the road violated John's constitutional right of confrontation under the sixth amendment. The error, however, was harmless beyond a reasonable doubt.

The statement only disclosed that John approached Redhouse on the road. John admitted this fact in his statement, and his admission was received in evidence. Further, Thomas herself identified John at trial as having been present at the second set of rapes. In addition, John confessed to the rapes. Thus, the evidence of John's guilt was overwhelming, and the prejudice to him by Ahkea's inadvertent testimony was slight by comparison. See United States v. Guerrero, 756 F.2d 1342, 1348 (9th Cir.) (per curiam), cert. denied, 469 U.S. 934 (1984).

We conclude that notwithstanding the violation of the confrontation clause, reversal is not required. See Toolate v. Borg, 828 F.2d 571, 575 (9th Cir. 1987).

We understand the appellants' argument that the government improperly vouched for the credibility of the witness Benally, but we reject it. In the context of the entire trial, the prosecutor's conduct does not appear "to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). Again we note that the evidence of guilt was overwhelming. Even if some of the prosecutor's comments constituted improper vouching for Benally, the error was harmless. See United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

The appellants argue the prosecutor committed misconduct by repeatedly trying to introduce evidence that Thomas was a virgin before she was raped, and by comments to the jury of a similar nature made in closing argument.

With regard to the attempts to introduce evidence of Thomas' virginity, the prosecutor succeeded, albeit only for the limited purpose heretofore discussed. His conduct in this regard was not improper. As to the prosecutor's comments to the jury during argument, we agree with the appellants that some of these comments were improper. However, not every improper remark by a prosecutor in argument to the jury requires reversal. "The critical inquiry is whether, in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985). Here, it was not the prosecutor's remarks that likely influenced the jury to convict the defendants. It was the overwhelming evidence of the defendants' guilt.

In his argument to the jury, the prosecutor challenged defense counsel by name to explain to the jury how Anna Thomas "got up on her own two feet and her own volition and got in that car and rode in that car." There was nothing improper about this. A prosecutor may comment upon the defense's failure to present exculpatory evidence, so long as the comments are not couched in terms which call attention to the defendant's failure to testify. See United States v. Bagley, 772 F.2d 482, 494-95 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). Here, the prosecutor referred to the attorneys' failure to present a credible defense. No reference was made to the defendants' failure to testify.

Appellants' argument that the Guidelines are unconstitutional because they allow sentence enhancements without requiring proof beyond a reasonable doubt is foreclosed by our decision in United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990).

The appellants argue that they were twice placed in jeopardy because the district court determined, under Sentencing Guideline Sec. 2A3.1 that the base offense level for aggravated sexual abuse was 27, and then increased that base by four levels pursuant to section 2A3.1(b) (1). We reject this argument. The court applied this increase because force was used in raping Thomas. While the use of force is one of the ways aggravated sexual abuse may be committed, see 18 U.S.C. § 2241(a) (1) (1988), it is not the only way. See 18 U.S.C. § 2241(a) (2) (1988). The four-level increase for the use of force pursuant to Guideline Sec. 2A3.1(b) (1) reflects the prescribed method under the Guidelines for arriving at an appropriate sentence for aggravated sexual assault within the maximum sentence for that offense. The maximum sentence is a fine plus life imprisonment. 18 U.S.C. § 2241 (1988).

We also reject the appellants' argument that the district court improperly assessed a two-level increase under Guideline Sec. 2A3.1(b) (2) (B) based on the fact that Anna Thomas was under the age of sixteen at the time of the offense. Appellants ground this argument on their contention that because they were acquitted of the charges of sexual abuse of a minor, Thomas' minority could not be taken into consideration by the court to enhance their sentences. This argument misses the mark. Had the appellants also been convicted of sexual abuse of a minor, they would have faced an additional sentence for that conviction, based on an offense level of 15. See Guidelines Sec. 2A3.2(a). Their acquittals spared them this. But their acquittals did not change the age of their victim and did not cancel out Guideline Sec. 2A3.1(b) (2) (B), in which Congress chose specifically to address the victim's age in determining an appropriate sentence for aggravated sexual abuse.

We also reject the appellants' argument that the district court erred in applying a two-level increase under Guideline Sec. 2A3.1(b) (4), based upon the court's determination that Anna Thomas sustained serious bodily injury as a result of the rapes. Appellants base this argument on their contention that the evidence did not establish that Thomas suffered "serious bodily injury" as that term is defined in the Application Notes to Guideline Sec. 1B1.1. This argument overlooks the testimony of Thomas and Dr. Kaufman. "Serious bodily injury" is defined by Application Note 1(j) to Guideline Sec. 1B1.1 as including "injury involving extreme physical pain ... or requiring medical intervention such as surgery [or] hospitalization...." There was ample evidence that Thomas suffered extreme physical pain, required medical intervention, and was hospitalized.

Finally, we conclude that the district court did not err in assessing a two-level increase because Anna Thomas was a vulnerable victim. See Guidelines Sec. 3A1.1. The appellants argue that this adjustment was based solely on Thomas' age, and the court had already taken this into consideration by the two-level increase under Guideline Sec. 2A3.1(b) (2) (B). We disagree. Independent of Thomas' vulnerability due to her age, she was gang-raped brutally on two occasions: once in the nighttime and again the next morning. The effects of the first series of attacks rendered her more vulnerable to the second series. In addition, Thomas had been drinking beer just prior to first being attacked, and she alone faced the group of men who assaulted her.

AFFIRMED.

 *

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

 1

Redhouse's counsel withdrew at oral argument his contention that the court erred in imposing on Redhouse a sentence greater than that imposed on John. Redhouse's counsel correctly acknowledged that John accepted responsibility and Redhouse did not. See Guidelines Sec. 3E1.1

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