Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1990)

MEMORANDUM^* 

Norman Seideman appeals his conviction under 18 U.S.C. §§ 1153 and 2241(c) for engaging in a sexual act with a child under twelve on an Indian reservation. Seideman contends that the district court committed prejudicial error when it allowed two experts to testify to the credibility of the victim. He further urges that the trial court erred in admitting hearsay testimony into evidence. Finally, Seideman claims he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

* Seideman's conviction arose out of an allegation by Tamara Chase (Tami) that on February 8, 1989, Seideman, Tami's stepfather, entered her room and touched her private parts. Tami did not relate the incident to her mother, Deborah Lynn Stout,¹  until approximately three months later.

Stout took Tami to the Regional Center for Child Abuse and Neglect in Spokane, Washington. There, Eric Warren, who holds a masters degree in social work, interviewed Tami and videotaped the session. During the interview, Tami inculpated Seideman.

On approximately May 23, 1989, Stout had Tami examined by Dr. Gary Harding, the family physician. Stout asked Dr. Harding to look for signs of sexual abuse. He found none. However, in response to Dr. Harding's inquiries, Tami essentially recounted the story she had told Warren, indicating that her stepfather had touched her private parts.

On July 29, Seideman was indicted for the sexual abuse of Tami, in violation of 18 U.S.C. §§ 1153 and 2241(c).

At trial, Warren and Dr. Harding testified on behalf of the government, without objection, concerning Tami's credibility. Also, Warren, Dr. Harding, and Stout recounted what Tami had told them concerning the incident. Seideman's counsel argued in his trial brief that Warren's testimony recounting Tami's story was inadmissible hearsay. Counsel did not, however, renew the challenge at trial. Furthermore, counsel never objected to the testimony of Dr. Harding and Stout concerning Tami's statements incriminating Seideman. Over the objection of Seideman, Tami testified. At first, Tami denied that her stepfather had abused her. However, after a short recess, Tami recanted her initial testimony and inculpated Seideman. There was no physical evidence or witness testimony of the abuse, other than the testimony of Tami.

Seideman was convicted by a jury on October 13, 1989. On August 3, 1990, he was sentenced to a term of three years' imprisonment and five years of supervised release. This appeal ensued.

II

Seideman's first assignment of error concerns the district court's admission of testimony by Warren and Harding regarding Tami's credibility. In essence, Seideman argues that both experts invaded the province of the jury by testifying that they believed Tami's story that Seideman had fondled her private parts. Statements admitted without objection are reviewed for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

* Seideman objects to the admission of Eric Warren's testimony that (1) it was his assessment that Tami was honest throughout the interview; and (2) it would not be surprising or uncommon for Tami to have forgotten certain details of the night of the abuse.

Our decision is controlled by United States v. Binder, 769 F.2d 595 (9th Cir. 1985). In that case, the court held that credibility testimony is improper because it usurps the jury's factfinding function. Id. at 602. Binder noted that although expert testimony which is admitted solely to aid the jury in understanding credibility evaluations or problems common to all children of the victim's age is admissible, such testimony is improper if it essentially establishes that "these particular children in this particular case could be believed." Id. Binder then held that the erroneous admission of expert testimony was not harmless because the testimony concerned a crucial issue in the case, the children's credibility. Id.

The testimony concerning Tami's lack of memory of specific details was of a general nature and therefore was not improper. The discussion entailed an analysis of the ability of a sexual abuse victim to remember specific events. Warren did not state that he believed Tami's story; rather, he said that it would not be uncommon for Tami to forget certain details. The jury was not "impermissibly being asked to accept an expert's determination that th [i]s [ ] particular witness [ ] w [as] truthful." Id.

The rule in Binder applied when Warren stated " [i]t was my assessment that she was honest throughout the interview." This statement explicitly demonstrated Warren's belief concerning the veracity of Tami's statement. Nevertheless, the government submits that Seideman's counsel opened the door on this issue during cross-examination of Warren and, therefore, its inquiries were proper under United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). We agree.

Whitworth provides that " [u]nder the rule of curative admissibility, or the 'opening the door' doctrine, the introduction of inadmissible evidence by one party allows an opponent, in the court's discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission." 856 F.2d at 1285 (citations omitted). The government's examination of Warren was designed to rebut the impression that Tami was not credible. We also note that the trial judge instructed the jury that credibility issues are solely decided by them. Warren's testimony was admissible under Whitworth.

B

Seideman also challenges Dr. Harding's testimony as violative of the Binder rule. Specifically, he points to Harding's statement that " [his] history didn't give [him] anything to disbelieve her." While we note that admission of this testimony may have been questionable under Binder, we cannot say that it constituted plain error, a standard under which reversal of a criminal conviction is warranted only to "prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Castro, 887 F.2d 988, 993 (9th Cir. 1989) (internal quotation omitted).

Dr. Harding did not expressly state that he believed Tami.²  Rather, he stated that he had no reason to disbelieve her. Harding did not put "his stamp of believability on [Tami's] entire story," United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986); instead, Harding found Tami's story sufficiently credible to conduct further studies at the Regional Center for Child Abuse.

Furthermore, the trial judge was in a better position than we are to determine whether the door which had previously been opened by defense remained ajar. "When a wise and experienced judge, who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it." United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir.) (quotation omitted), cert. denied, 111 S. Ct. 191 (1990).

This case is distinguishable from Binder, where the court held that the erroneous admission of the expert testimony was not harmless. 769 F.2d at 602. In that case, the jury was apparently confused by the credibility testimony of the physicians and asked to see the doctors' reports during deliberations, "thus suggesting that the jury may have given substantial emphasis to the doctors' evaluation of the children's credibility." Id. There is no indication from the record that the jury was confused here. Furthermore, any such confusion was cured by the trial judge's clear instructions categorically informing the jury that credibility assessments are made exclusively by the jury.

III

Seideman next contends that the trial judge improperly admitted hearsay testimony by Dr. Harding, Warren, and Stout.

* Seideman, citing cases which hold that identity testimony is improper, challenges the admission of statements made by Tami to Dr. Harding identifying Seideman as her abuser. The government contends that the testimony was admissible under the medical treatment exception. We agree with the government, noting that United States v. Renville, 779 F.2d 430 (8th Cir. 1985), is directly on point.

In that case, the Eighth Circuit upheld the trial court's admission of testimony by a physician recounting the statements made by a child abuse victim identifying the defendant. Id. at 432. The court admitted the doctor's testimony under Federal Rule of Evidence 803(4). Id. at 438; accord Morgan v. Foretich, 846 F.2d 941, 949-50 (4th Cir. 1988). The court noted that the "exact nature and extent of psychological problems which ensue from child abuse often depend on the identity of the abuser." Renville, 779 F.2d at 437.

We agree with the reasoning in Renville and hold that Dr. Harding's testimony recounting Tami's story was properly admissible under the medical treatment exception to the hearsay rule. Although we recognize that fault testimony is generally inappropriate, we agree with the Renville court that identity testimony by a child abuse victim presents a sufficiently different case from the general rule. See id. at 436.

B

Seideman similarly challenges the trial court's admission of Warren's identity testimony. The government responds that the testimony was admissible under the Federal Rules' residual exception, Rule 803(24). Again, we find the government's argument persuasive.

Seideman contends that Tami's statements were not sufficiently reliable to pass muster under Idaho v. Wright, 110 S. Ct. 3139 (1990). Wright was a sexual abuse case where the defendant was convicted under Idaho law. At issue in that case was the admission of certain statements made by the victim to an examining physician. The victim did not testify. However, the physician essentially recounted the story told to him by the victim. Id. at 3143-44.

The trial court admitted the statements under Idaho's residual hearsay exception.³  The defendant claimed that her confrontation clause rights had been violated. Id. at 3145. The Supreme Court agreed, indicating that a hearsay statement which does not fall within a traditional hearsay exception must be particularly reliable. Id. at 3146.

We note that Wright did not reach the issue of whether the confrontation clause and the reliability test apply when a child declarant does testify. See id. at 3147. Tami did testify and therefore Wright is arguably inapplicable.⁴  Nevertheless, we find that Tami's statements were sufficiently reliable to pass muster under Wright, which provides that the totality of the circumstances determine whether a hearsay statement is sufficiently reliable to be admitted without violating the confrontation clause.⁵ 

Warren videotaped his interview with Tami, thus making a clear record of all that occurred. He did not use leading questions. The Supreme Court observed that these factors "may well enhance the reliability of out-of-court statements of children regarding sexual abuse." Id. at 3148. Tami appears to have been spontaneous in her statements to Warren. There is no evidence in the record that Tami had any reason to fabricate the story.⁶  Tami did not use language which indicated that she had been coached by her mother.⁷  Thus, viewing the totality of the circumstances in which Tami's statements were made, it was not plain error for the trial court to admit Tami's statements.

C

A statement is hearsay if it is offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Seideman contends that testimony given by Stout was hearsay and, therefore, should not have been admitted. Seideman does not point to any specific testimony, but apparently refers to Tami's statements to Stout that Seideman touched her private parts.

We conclude that the statements were properly admissible because they were not offered to prove that Seideman touched Tami. Rather, the testimony was elicited to develop a background as to why Stout took Tami to be examined by Dr. Harding. It was not plain error to allow the testimony.

IV

Seideman claims that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), in failing to object to the expert testimony on Tami's credibility, leading questions, and hearsay testimony. Furthermore, Seideman contends counsel should have obtained a ruling on the contested hearsay testimony of Warren and should not have broached the topic of Tami's credibility.

The usual vehicle for raising an issue of effectiveness of counsel is a collateral attack on the conviction pursuant to 28 U.S.C. § 2255. United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir. 1987); United States v. Rogers, 769 F.2d 1418, 1424-25 (9th Cir. 1985). This court is chary of analyzing ineffectiveness of counsel claims on direct appeal. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). We cannot sustain Seideman's claim of ineffective assistance of counsel on the record before us. See United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, cert. denied, 469 U.S. 863 (1984) (quoting People v. Pope, 23 Cal. 3d 412, 426, 590 P.2d 859, 867, 152 Cal. Rptr. 732, 740 (1979)).⁸ 

AFFIRMED.