Filed: Oct. 10, 2012
Latest Update: Mar. 26, 2017
Summary: victim's testimony;United States v. Noah, 130 F.3d 490, 496 (1st Cir. the district court explicitly, stated that it would reconsider its ruling if the evidence as it, actually comes in did not pass muster under Rule 404(b).examination of Detective Chad Syphers (a government witness).See U.S. Const.
United States Court of Appeals
For the First Circuit
No. 10-2346
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES RAYMOND,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Ripple* and Selya,
Circuit Judges.
Richard L. Hartley, with whom Law Office of Richard Hartley
was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Richard W. Murphy, Attorney for the United States, acting
under authority conferred by 28 U.S.C. § 515, and Thomas E.
Delahanty II, United States Attorney, were on brief, for appellee.
October 10, 2012
*
Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. A federal grand jury in the
District of Maine handed up an indictment that charged an
elementary-school music teacher with two counts of transporting a
minor with intent to engage in criminal sexual activity. See 18
U.S.C. § 2423(a). Following a bench trial, the district court
found the teacher guilty and imposed a twelve-year incarcerative
sentence. The teacher appeals. After careful consideration of
this tawdry tapestry, we affirm.
I. BACKGROUND
Because the conviction in this case followed a bench
trial, we rehearse the facts as supportably found by the district
court. See United States v. Raymond, 710 F. Supp. 2d 161, 162-64
(D. Me. 2010).
From 2003 to 2007, defendant-appellant James Raymond, a
29-year-old man, toiled as an elementary-school music teacher in
Auburn, Maine. On two different occasions in July and August of
2007, he invited an eleven-year-old pupil and her nine-year-old
sister to Canobie Lake Park, an amusement park in Salem, New
Hampshire. On each occasion he drove the girls, unaccompanied by
any other adult, from their family's home in Maine to the park.
The district court found that at least one of the
defendant's motives for these trips was "sexual contact with the
eleven-year-old if the opportunity should arise." Id. at 162-63.
During the July trip, the defendant touched the eleven-year-old's
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buttocks three times. Id. at 162. He apologized each time that
this occurred. During the August trip, the defendant touched the
eleven-year-old's buttocks once again. Id. at 163. The district
court determined that the buttocks-touching incidents were
intentional and carried out for the purpose of sexual
gratification. Id. at 162-64.
In adjudging the defendant guilty, the district court
attached decretory significance to four pieces of evidence: the
victim's testimony; other students' testimony about a June 2007
school-sponsored bus trip to Canobie Lake during which they
observed the defendant rubbing his hand on the victim's legs; the
testimony of another young girl who stated that the defendant
"touched her buttocks under her skirt at school" in October 2007;1
and a videotaped interview with police in which the defendant
discussed "his physical urge to touch young girls' buttocks" and
his habit of "masturbating once or twice a week about kids." Id.
at 163 (internal quotation marks omitted). With respect to the
June 2007 bus trip, the court also noted that the victim herself
testified that the defendant "put his hand inside her shirt on her
belly and . . . on the back of her leg toward her butt." Id.
Following the defendant's conviction, the probation
department prepared a presentence investigation report (PSI
1
This conduct ultimately led to a state-court conviction for
two counts of unlawful sexual touching and three counts of assault.
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Report). The final version of the PSI Report set the advisory
guideline sentencing range (GSR) at 262 to 327 months. The
district court imposed a below-the-range prison sentence of twelve
years. This timely appeal ensued.
II. ANALYSIS
In this venue, the defendant advances three claims of
error. We discuss these claims sequentially.
A. Rule 404(b) Evidence.
The defendant argues that the district court improperly
admitted evidence of both his contact with the victim during the
June 2007 bus trip and his inappropriate conduct with another young
girl in October of that year.2 The admission of both of these
pieces of evidence implicates Federal Rule of Evidence 404(b) and
engenders review for abuse of discretion. United States v.
Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000).
At the time of the defendant's trial in 2010, Rule 404(b)
provided:3
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
2
Although the defendant's brief extends this argument to
testimony that was admitted concerning yet another young girl, the
district court did not rely on any such testimony in adjudicating
the defendant's guilt. We limit our discussion accordingly.
3
Rule 404(b) was amended effective December 1, 2011. The
changes are entirely stylistic. See Fed. R. Evid. 404 advisory
committee's note.
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other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident . . . .
The admission of prior bad acts evidence in this case fits within
the confines of Rule 404(b). We explain briefly.
The statute of conviction provides in relevant part:
A person who knowingly transports an
individual who has not attained the age of 18
years in interstate . . . commerce, . . . with
intent that the individual engage . . . in any
sexual activity for which any person can be
charged with a criminal offense, shall be
[punished as provided by law].
18 U.S.C. § 2423(a). Under this statute, the government does not
need to prove an exclusive intent to engage in the proscribed
activity. It suffices if such an intent is one of the purposes of
the interstate transportation. United States v. Ellis, 935 F.2d
385, 390 (1st Cir. 1991).
In the case at hand, the district court found that the
defendant's activities were chargeable under both New Hampshire law
and Maine law. See Raymond, 710 F. Supp. 2d at 166-67 (citing N.H.
Rev. Stat. Ann. §§ 632-A:3(III), 632-A:1(IV) and Me. Rev. Stat.
Ann. tit. 17-A, §§ 260(1)(C), 251(1)(G)). Moreover, there was no
question that the trips with the victim and her younger sister
actually occurred; the defendant conceded as much. The pivotal
issue, then, was the defendant's intent.
With this in mind, the government asked the court in a
pretrial motion, see Fed. R. Evid. 404(b) (mandating advance notice
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of the government's intention to offer Rule 404(b) evidence in a
criminal case), for leave to present Rule 404(b) evidence
(including the evidence about which the defendant complains on
appeal). The government maintained that this evidence tended to
show the defendant's intent to engage in unlawful sexual activity
during the July and August 2007 trips.
The defendant opposed this proffer. The court overruled
the defendant's objection in relevant part and authorized the
government to offer the testimony challenged on appeal. It is this
ruling that the defendant now assails.
There is, however, a threshold question. The government
insists that the defendant failed to preserve his right to
challenge this evidence on appeal because he did not renew at trial
his objection to its admissibility. We addressed a similar
question in United States v. Griffin, 818 F.2d 97 (1st Cir. 1987).
There, we concluded that, in order to preserve a challenge to an
evidentiary ruling for appeal, "a party must obtain the order
admitting or excluding the controversial evidence in the actual
setting of the trial," even if a conditional pretrial ruling was
previously made. Id. at 105. We reached this conclusion by
analogy to Luce v. United States,
469 U.S. 38 (1984), in which the
Supreme Court held that "to raise and preserve for review [a] claim
of improper impeachment with a prior conviction, a defendant must
testify" at trial, notwithstanding an earlier in limine ruling.
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Id. at 43. Griffin is still good law: "[i]t is settled in this
circuit that, when the district court tentatively denies a pretrial
motion in limine, or temporizes on it, the party objecting to the
preliminary in limine determination must renew his objection during
the trial, and the failure to do so forfeits any objection."
United States v. Noah, 130 F.3d 490, 496 (1st Cir. 1997); accord
United States v. Joost,
133 F.3d 125, 129 (1st Cir. 1998).4
In this instance, the defendant has eschewed any response
to the government's argument that the pretrial ruling, by itself,
failed to preserve his claim of error. The reason for the
defendant's silence is obvious: the pretrial ruling was not
definitive, see supra note 4, and the defendant was therefore
obliged to object, on pain of forfeiture, when the government
sought to introduce the challenged evidence at trial. Because he
did not do so, his claim of error is forfeit.
Of course, even forfeited claims may be reviewed for
plain error. Puckett v. United States, 556 U.S. 129, 134-35
(2009). Here, however, there was no error, plain or otherwise.
4
"To be sure, there may be instances where a trial court's
ruling on an in limine motion, taken in context, is definitive
enough to excuse omission of an objection on the point at trial."
Freeman v. Package Mach. Co., 865 F.2d 1331, 1337 (1st Cir. 1988).
But to animate this exception, the pretrial ruling ordinarily must
be final, given "either [] the nature of the judge's words, or []
the rationale of [the] ruling, or [] both." United States v.
Holmquist,
36 F.3d 154, 166 n.12 (1st Cir. 1994). Here, the
pretrial ruling lacked finality; the district court explicitly
stated that it would reconsider its ruling "if the evidence as it
actually comes in" did not pass muster under Rule 404(b).
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Even if the defendant had preserved his claim for review,
the district court did not abuse its discretion in allowing the
challenged evidence. While bad acts evidence may not be admitted
either to show a defendant's deplorable character or his propensity
to act in unattractive ways, such evidence is admissible to show,
among other things, his intent and the absence of mistake. See
Fed. R. Evid. 404(b).
The Supreme Court has explained that, in evaluating the
admissibility of Rule 404(b) evidence, a court initially must
decide whether the evidence submitted "is probative of a material
issue other than character." Huddleston v. United States, 485 U.S.
681, 686 (1988). To implement this directive, we have required
that Rule 404(b) evidence be shown to "have special relevance to an
issue in the case such as intent or knowledge." Varoudakis, 233
F.3d at 118 (internal quotation marks omitted). In evaluating this
showing, the timing of the proffered bad act and its degree of
resemblance to the conduct charged in the case are relevant
considerations. See id. at 119.
We hasten to add that special relevance is a necessary
but not a sufficient condition for the admissibility of Rule 404(b)
evidence. Such evidence also must pass through the filter of
Federal Rule of Evidence 403, which demands that the probative
value of the evidence must substantially outweigh any danger of
unfair prejudice. Fed. R. Evid. 403. This balancing is best
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performed by the trial judge, who has an intimate familiarity with
the ebb and flow of the case and with its nuances. When the trier
has determined that evidence satisfies Rule 403, "[o]nly rarely —
and in extraordinarily compelling circumstances — will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighing of probative
value and unfair effect." Freeman v. Package Mach. Co., 865 F.2d
1331, 1340 (1st Cir. 1988).
The evidence in question here satisfies the foundational
requirements for Rule 404(b) evidence. The first benchmark is that
the finder of fact "can reasonably conclude that the act occurred
and that the defendant was the actor." Huddleston, 485 U.S. at
689. That benchmark is satisfied: the court below deemed the
proffered testimony credible, and the record casts no doubt on the
reasonableness of that finding. Although the defendant argues that
the evidence "was fragile and insufficient," he does not explain
how or why. Where the trial court sits as the factfinder,
judgments about witness credibility are ordinarily within its
exclusive province, see, e.g., United States v. Pontoo, 666 F.3d
20, 27 (1st Cir. 2011), and we discern no reason to depart from
that salutary principle here.
The next benchmark is likewise satisfied: the proffered
evidence was specially relevant. The defendant suggested that the
touchings were accidental, see, e.g., Raymond, 710 F. Supp. 2d at
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162, and the evidence tended to show the absence of mistake. In
other words, the testimony was not introduced to prove that the
defendant was a predator but, rather, to shed light upon his intent
during the July and August excursions. To cinch matters, the
events chronicled in the challenged testimony were not only
proximate in time, but also bore a strong resemblance to the
charged conduct.5
Last — but far from least — the challenged testimony
survives Rule 403 balancing. The defendant's intent was a critical
issue at trial, and the challenged evidence packed a punch on that
issue. Simply throwing dysphemisms at a piece of evidence does not
diminish its probative force, cf. Christian Recorder — Proverbs
(Mar. 22, 1862) ("Sticks and stones will break my bones, but words
will never harm me."), and the evidence at issue here was highly
probative.
The defendant laments the prejudicial effect of this
evidence, but he makes no showing of unfairness sufficient to
counteract its substantial probative value. The mere fact that
evidence is prejudicial does not trump the need for Rule 403
balancing: "By design, all evidence is meant to be prejudicial; it
5
The court below was sensitive to the importance of temporal
proximity and shaped its pretrial ruling accordingly. For example,
it excluded evidence of a 2005 incident involving other young girls
out of concern that the incident was "much more remote in time and
more likely to be used . . . as mere character or propensity
evidence, which is forbidden."
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is only unfair prejudice which must be avoided." United States v.
Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) (emphasis in
original).
It is worth noting that the district court exhibited
commendable sensitivity to the potential for unfair prejudice. It
went to great lengths in an effort to establish a Rule 404(b)
equilibrium. For example, in ruling on the scope of testimony of
the defendant's character witnesses, the court indicated that it
would allow testimony by a parent that the defendant never touched
her child.
That ends this aspect of the matter. We conclude that
the defendant forfeited his Rule 404(b) claim of error; and that,
in all events, the district court did not abuse its discretion in
admitting evidence either of the bus trip or of the defendant's
inappropriate conduct with another underage girl.6
B. Cross-Examination.
The defendant's next claim of error is premised on the
notion that the district court improperly restricted his cross-
examination of Detective Chad Syphers (a government witness).
6
It is at least arguable that, in a bench trial, a district
court has wider latitude in the admission of Rule 404(b) evidence.
Cf. Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th
Cir. 1981) (suggesting that "Rule 403's weighing of probative value
against prejudice . . . has no logical application to bench
trials"). Given the patent admissibility of the evidence
challenged here, we need not probe this point.
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Syphers was the officer who questioned the defendant in October of
2007. In that videotaped interview, the defendant made admissions
that the district court found telling. See Raymond, 710 F. Supp.
2d at 163. The defendant claims that the court improperly
truncated his cross-examination of this key witness and, thus,
foreclosed his opportunity to put the admissions in a less
unattractive light.
We review de novo the preliminary question of whether a
defendant, in conducting cross-examination, was afforded a
reasonable opportunity to impeach the witness. United States v.
Martínez-Vives, 475 F.3d 48, 53 (1st Cir. 2007). We review for
abuse of discretion any limitations that the trial court imposed on
that reasonable opportunity. Id.
A defendant's right to cross-examine adverse witnesses
has its genesis in the Confrontation Clause of the Sixth Amendment.
See U.S. Const. amend. VI, cl. 2; see also United States v. Ofray-
Campos, 534 F.3d 1, 36 (1st Cir. 2008). But the fact that the
right of cross-examination is anchored in constitutional terrain
does not give the cross-examiner carte blanche to ask whatever he
pleases whenever he pleases. A trial court possesses a
considerable margin of discretion to impose reasonable limits on
cross-examination. Martínez-Vives, 475 F.3d at 53. Once such
limits are imposed, they can be overturned on appeal only if the
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reviewing court finds them to be both unreasonable and prejudicial.
See id.
In this case, the defendant asseverates that Syphers
exhibited two different strains of bias: a belief that all sex
offenders act similarly, and a belief that all sex offenders
graduate from less serious to more serious offenses. These biases,
the defendant says, combined to create a coercive interview
environment that impinged upon the voluntariness of his videotaped
statements, and the district court unfairly hampered his inquiry
into this subject.
The record reflects that the district court allowed the
defendant free rein to inquire into the first strain of bias. But
when defense counsel asked Syphers about whether sex offenders
typically displayed a pattern of graduating from less serious to
more serious offenses, the court sustained an objection, reasoning
that the videotape of the interview was offered for the defendant's
statements, not for Syphers's state of mind. It is this ruling
that draws the defendant's ire.
The trial transcript makes manifest that the court
afforded the defendant a reasonable opportunity to cross-examine
Syphers. It gave the defendant considerable time and latitude to
pursue the question of bias. The resultant cross-examination was
both searching and far-flung. In particular, defense counsel was
permitted, both before and after the sustained objection, to ask
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about Syphers's interview technique. Based on this extensive
cross-questioning and on the videotape itself, the court expressed
an awareness that Syphers, in the course of the interview, "said
whatever he had to say to get the answer he want[ed]." Further
cross-examination hardly could have done more to expose the
witness's bias.
To say more on this subject would be to paint the lily.
Cross-examination does not present a defendant with an endless
opportunity to probe into an adverse witness's thoughts and
actions. Here, the trial court gave the defendant leeway to test
the witness's purported bias in a variety of ways. The fact that
the court did not yield to every entreaty of the cross-examiner
does not, without more, constitute an abuse of discretion. In this
instance, there was no "more."
C. Sentencing.
The defendant's final plaint is that the district court
erred in imposing a twelve-year incarcerative sentence. In the
defendant's view, the court should not have sentenced him to more
than the ten-year statutory minimum. See 18 U.S.C. § 2423(a).
Although the defendant's sentencing argument is not a
model of clarity, the prohibition on cruel and unusual punishment,
see U.S. Const. amend. VIII, is the dominant theme. We review
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Eighth Amendment challenges to imposed sentences de novo. United
States v. Polk, 546 F.3d 74, 75 (1st Cir. 2008).
A sentence comprises cruel and unusual punishment if it
is "grossly disproportionate to the underlying offense." Id. at
76. The threshold inquiry weighs the "gravity of the offense and
the harshness of the penalty." Solem v. Helm, 463 U.S. 277, 290-91
(1983). If this initial weighing does not reveal gross
disproportionality, the inquiry ends there, and a reviewing court
need not undertake a comparative analysis. See Ewing v.
California,
538 U.S. 11, 23 (2003). This is a daunting standard,
and "most efforts to demonstrate gross disproportionality will
fail." Polk, 546 F.3d at 77.
The defendant's sentence is not grossly disproportionate
to the offenses of conviction. The crimes were serious; they
involved the repeated touching for sexual gratification of an
eleven-year-old girl entrusted to the defendant's care and
supervision. Molestation of a young girl is not a trivial matter.
The punishment meted out by the sentencing court, though
severe, was not Draconian. The GSR (which the defendant does not
challenge) is 262 to 327 months, and the court sentenced the
defendant to a term of imprisonment substantially below the bottom
of this range. In these circumstances, we do not think that any
fair-minded person could consider a twelve-year sentence to be
grossly disproportionate.
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Under the advisory guidelines, a sentence in a criminal
case must be substantively reasonable. United States v. Booker,
543 U.S. 220, 261 (2005); United States v. Clogston,
662 F.3d 588,
592-93 (1st Cir. 2011). We do not believe that the defendant has
developed an argument challenging his sentence under this standard.
In an abundance of caution, however, we have examined the sentence
for reasonableness. Based on much the same considerations as
discussed above, we conclude, without serious question, that the
sentence is substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the defendant's conviction and sentence.
Affirmed.
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