Unpublished Disposition, 884 F.2d 583 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 583 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.J.D. TODD, Defendant-Appellant.

No. 88-1368.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1989.Decided Aug. 25, 1989.

Before WALLACE, HUG and NOONAN, Circuit Judges.


MEMORANDUM* 

J.D. Todd appeals form his conviction of a variety of offenses in violation of 18 U.S.C. § 2243 and in violation of Arizona law adopted by the Assimilative Crimes Act, 18 U.S.C. § 13. We reverse.

BACKGROUND

Todd was the teacher-supervisor in charge of student discipline at the Lowell Greasewood Boarding School for Navajo children on the Navajo reservation in Northern Arizona. He was charged with sexual offenses involving seven boys at the school between October 1986 and May 1987. He was convicted on counts 1, 2, 3, 6 and 7 and sentenced to terms of 17 years on each count, to run consecutively. He was convicted on counts 4, 8, 9, 10, 11 & 13 and sentenced on each count to 2 years, to run consecutively to each other and to the five 17-year sentences. He was convicted on count 5 and given a sentence of 5 years, suspended, and a fine of $50,000.

ANALYSIS

The Dating of Certain Offenses. The indictment carefully specified that certain offenses, involving sexual contact between Todd and the boys, took place in October 1986 or November 1986. The dates were critical because on December 10, 1986 the federal Sexual Abuse Act of 1986 took effect, preempting the Arizona law as to these acts. Prior to December 10, 1986, Arizona law applied to the Indian reservation by virtue of the Assimilative Crimes Act 18 U.S.C. § 13. After that date, as to these acts the Sexual Abuse Act, forbidding sexual abuse of a minor or ward within the territorial jurisdiction of the United States, governed. 18 U.S.C. § 2243(a) and (b).

Realizing that the dates were crucial, the prosecutors called in rebuttal FBI Agent John Raucci. When he had testified at the start of the prosecutor's case, Agent Raucci had testified that the boys he interviewed "could not establish certain time frames." [TR II: 165] Called as a rebuttal witness, Raucci testified that, using a calendar while talking to Darryl Smith, he established that the acts described by Smith took place in November 1986. [TR IX: 94-95] These were the acts charged in Counts 1, 2 and 3. On direct examination Smith was asked, "Calling your attention to November of 1986, which would not have been this past November, but the November before, do you remember some things happening to you that month over there?" He answered, "Yeah." [TR V: 106] This dating as to "some things" was the only dating on direct.

On cross-examination Smith testified that he did not remember the month of the first incident; it could not have happened in December; that it was a couple of weeks after Thanksgiving; that it could not have been before December 10, 1986. [TR V: 140-41] As to the second incident, on direct examination, he testified that it occurred in November 1986. [TR V: 111] On cross-examination he testified that it happened about two weeks after the first incident. [TR V: 145] The third incident Smith also placed, on direct examination, in November 1986. [TR V: 147] On cross-examination he testified that it had happened when he was in the seventh grade and that he couldn't remember it; and that it happened between two weeks and a month after the second incident. [TR V: 148] On re-direct examination, Smith was asked only, "When you spoke to Mr. Raucci, do you remember telling him that this happened about the first two weeks of November?" "And is that what happened about the first two weeks of November?" Smith answered, "Yes." [TR V: 158]

Raucci's recollection of what Smith told him was not evidence of what happened, and Smith's testimony was insufficient to establish beyond a reasonable doubt the dates of the crimes charged in Counts 1, 2, and 3. Thanksgiving in 1986 was stipulated to have occurred on November 27. Smith did not place any of the three incidents in November 1986 except in response to the prosecutor's initial question on direct which asked him if the events had occurred in "November 1986." The attempted rehabilitation on re-direct referred only to a "this" whose referent was unmentioned. On cross-examination Smith placed the first incident two weeks after November 28 or about December 12; the second incident two weeks later or December 26; the third, two weeks later or January 10, 1987. He also put the third incident in 1985 when he was in the seventh grade and testified he did not remember it. He also testified on cross-examination that the first incident could not have occurred in December 1986.

It is the province of the jury to determine credibility and to find facts. But a jury can only act upon the evidence before it. The testimony of Smith as to the dates contradicted itself. The prosecution in its closing argument told the jury:

There is, ladies and gentlemen, a certain amount of confusion regarding dates in this. I said that from day one and I will say it here today. But that confusion is explainable. It is explainable because these are young men who at the time were seventh and eighth graders. You can draw upon your common sense. You can draw upon your own personal experience and determine whether or not seventh or eighth graders are going to be marking this type of conduct on a calendar. [TR X: 46]

This passage virtually conceded that the government's witnesses could not accurately date the crimes.

The prosecutor continued:

But, ladies and gentlemen, confusion cannot be confused with lies. Don't mistake one for the other. Don't believe that just because these children cannot remember minor details, that this did not occur." [TR X: 47]

Again the prosecutor used the vague, unreferenced "this". And the dates were not "minor details." Admitting confusion "from day one" as to the dates, the prosecutor by focusing on the credibility of the children as the events could not avoid the focus of the his admission as to the dates. Reviewing the evidence in the light most favorable to the prosecution, we conclude that no rational trier of fact could have found the essential elements of Counts 1, 2 and 3 proved beyond a reasonable doubt. Conviction on them must be reversed. Jackson v. Virginia, 443 U.S. 307, 309, 317 (1970).

The Preemption of Certain Counts. Counts 4, 8, 9, 10, and 12 charged Todd with violation of the Arizona statute headed "Public Sexual Indecency; Public Sexual Indecency To A Minor," a statute made applicable to Indian reservations by the Assimilative Crimes Act, 18 U.S.C. § 13. Arizona law defines the crime as follows: "A person commits public sexual indecency to a minor if he intentionally or knowingly engages in any of the acts listed in subsection a and such person is reckless whether a minor under the age of 15 years is present." A.R.S. Sec. 13-1403(B). The acts listed in (a) include "an act of sexual contact." Sexual contact is then defined in section 13-1401.2 to include the "manipulating of any part of the genitals."

The federal Sexual Abuse Act of 1986, effective December 10, 1986, makes it a crime for anyone in a custodial, supervisory or disciplinary authority to engage in a sexual act with one under his authority. 18 U.S.C. § 2243(b). If the conduct does not amount to a "sexual act" as defined by section 2245, the conduct is nonetheless criminal if it amounts to "sexual contact." 18 U.S.C. § 2244(a). Sexual contact is defined by Sec. 2245(3) as "the intentional touching ... of the genitalia ... of any persons with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person."

It is apparent that the federal statute covers much of the same ground as the Arizona statute. The Arizona statute, however, is framed in terms of recklessness toward the presence of a minor and so reaches conduct not reached by the federal statute. Todd was convicted of precisely this kind of conduct. The case, consequently, is similar to another case we have recently decided involving the application of the Capital Assimilative Crimes Act to an Indian reservation, United States v. Kaufman, 862 F., 2d 236 (9th Cir. 1989). In that case the defendant was convicted under the Assimilative Crimes Act for violating an Oregon statute that prohibits purposely pointing an empty gun. The defendant argued that the statute covered the same offense as federal law prohibiting a person from entering federal property carrying firearms and from intimidating a federal officer. We held that the Oregon law prohibiting pointing was aimed at different generic conduct than the prohibited by federal law. Cf. United States v. Smith, 574 F.2d 988 (9th Cir.), cert. denied 439 U.S. 852 (1978). In the present case Todd was convicted of acts distinct from those prohibited by federal law. His preemption argument does not succeed.

The Testimony of Rosenzweig. The government presented as a witness Herschel D. Rosenzweig, a psychiatrist who had been the director of Child Sexual Abuse Treatment Team at Children's Hospital in Boston. He qualified as an expert witness to testify about the behavior characteristics of sexually abused children. His testimony was that a variety of behavior is shown by such children. Some become impulsive and bold and troublemakers. Others begin to engage in sexually provocative conduct. Others became disturbed, distressed and depressed and have difficulty focusing on academic subjects. Others become very withdrawn and passive. He concluded that "there are a wide variety of patterns of behavior" [TR VI: 27] He was then asked if he was familiar "with any general characteristics regarding a child's memory." He responded:

Well, children's memories for their own particular life events are very, very good. And children often are able to recall a considerable detail what has happened to them. They are very good witnesses. [TR VI: 27]

Dr. Rosenzweig's testimony had been objected to by the defendant as intended merely to booster the credibility of the boys testifying against Todd. It is difficult to see that his testimony had any other purpose. The range of possible behavior on the part of sexually abused children is so broad that knowledge of these characteristics had little probative value. On the other hand Dr. Rosenzweig explicitly testified that children were excellent witnesses.

In United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985) objection is made to expert testimony that the particular children in the particular case may be believed. Dr. Rosenzweig's testimony does not meet with this kind of disapproval. But it is also stated in Binder that experts may not testify in the way "that invades the province of the jury." The example given is expert testimony on the unreliability of eyewitness testimony. Id. (citing United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973)). If it is improper for an expert to testify as to the nonbelievability of a type of testimony it is equally improper for the expert to testify as to the believability of a type of testimony. A prosecution expert on credibility invites a defense expert on credibility: the jury's province would be invaded. Roe, Expert Testimony in Child Abuse Cases, 40 U.Miami L.Rev. 97, 104 (1985). "Credibility is a matter to be decided by the jury." Binder, 769 F.2d at 602 (citing United States v. Barnard, 490 F.2d 907, 912-13 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974)). Dr. Rosenzweig's testimony as to the credibility of children as witnesses was improper.

The erroneous admission of this testimony was not harmless. As in Binder it concerns a crucial issue in the case. Dr. Rosenzweig in effect vouched for the children. The admission of his testimony infects Todd's conviction on all of the counts.

Todd is entitled to a judgment of acquittal on Counts 1, 2, and 3. He may be retried on the remaining counts.

REVERSED and REMANDED.

WALLACE, Circuit Judge, concurring and dissenting:

I concur in the majority disposition on the issues of preemption and the insufficiency of the evidence of the dating of certain offenses. However, I do not believe that admission of Dr. Rosenzweig's expert psychiatric testimony concerning behavior characteristics of sexually abused children was either an abuse of discretion or harmful error.

A deferential standard of review applies here. We review the trial court's decision on the admissibility of expert testimony for "abuse of discretion or 'manifest error.' " United States v. Binder, 769 F.2d 595, 601 (9th Cir. 1985) (Binder), quoting United States v. Marabelles, 724 F.2d 1374, 1381 (9th Cir. 1984). If we determine that such an abuse or manifest error, we then apply a harmless error test, inquiring whether "the admission more probably than not materially affected the verdict." Id. at 601-02 (citation omitted).

The majority acknowledges that this case does not present the Binder problem of expert testimony that particular children in a particular case may be believed. Memo dispo. at 8. Rather, the majority suggests that Dr. Rosenzweig's testimony invaded the province of the jury in the same way as expert testimony that eyewitness testimony is unreliable. Id., citing Binder, 769 F.2d at 602, and United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973). The majority explains that " [i]f it is improper for an expert to testify as to the nonbelievability of a type of testimony it is equally improper for the expert to testify as to the believability of a type of testimony." Memo dispo. at 8. I cannot agree that it is this simple; the rationale behind our decision in Amaral is not present here. This is so because, assuming Dr. Rosenzweig's unrebutted testimony was correct, cross-examination and other ordinary trial techniques will not reveal the problems unique to child sexual abuse victim testimony. According to this testimony, the jury could not, on its own, properly evaluate the children's testimony; this is not a matter within the common sense, common knowledge, and ordinary experience of jurors. In Amaral, it was not an abuse of discretion to exclude the expert testimony because that testimony was unnecessary; here, it would not be an abuse of discretion to decide that the expert testimony could be considered necessary to assist the jury.

It may be that Dr. Rosenzweig was wrong; if so, a defense expert could have testified to that effect. While the majority seems to fear a responding defense expert testimony as to the credibility of child sexual abuse victims, id., I do not think discretion is abused to allow such testimony, as long as the expert is properly qualified and does not testify as to the credibility of a particular individual.

Although the majority seems to think such testimony was harmful, I believe it could be helpful to the jury's deliberations. At least, I would conclude that Todd has not shown that the testimony materially affected the verdict. See Binder, 769 F.2d at 601.

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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