United States v. Willis ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 21, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6102
IVAN BENNETT WILLIS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CR-00267-C-1)
_________________________________
Jacquelyn L. Ford, Ford Law Firm, Oklahoma City, Oklahoma (Jack Dempsey Pointer,
Pointer Law Office, Oklahoma City, Oklahoma, with her on the briefs), for Defendant-
Appellant.
K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey, Acting
United States Attorney, and Rozia McKinney-Foster, Assistant United States Attorney,
with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
I. INTRODUCTION
Appellant Ivan Bennett Willis was charged with aggravated sexual abuse
committed in Indian country. Mr. Willis admitted he had sex with a seventeen-year-
old acquaintance, K.M., and that the events occurred in Indian country. But Mr.
Willis maintained that K.M. consented to the encounter. Thus, the only issue at trial
was whether Mr. Willis used force against K.M. After a two-day trial, the jury
returned a guilty verdict.
Mr. Willis now appeals, challenging multiple evidentiary rulings by the district
court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
II. BACKGROUND
A. Factual History
Throughout the summer and fall of 2013, K.M. lived with her cousin, Jamee
Black, and Ms. Black’s boyfriend, Wesley Bear. On the evening of September 22,
2013, K.M. was babysitting the couple’s two children while Mr. Bear and Ms. Black
were working. Mr. Bear’s sister, Christi Bear, came to the Bear/Black home with her
boyfriend, Mr. Willis. Ms. Bear and Mr. Willis left their son with K.M. while Mr.
Willis drove Ms. Bear to work.
When Mr. Willis returned, instead of picking up his son and leaving, he began
making sexual advances toward K.M. After K.M. rejected Mr. Willis’s suggestion
that they have sex, Mr. Willis took her into the bathroom. Despite K.M.’s continued
objections, Mr. Willis pulled down her shorts and underwear, removed his pants,
pressed his body against hers, and tried to make her “touch his private area.”
Although K.M. continued to say no, Mr. Willis lifted her onto the sink and tried to
penetrate her. While continuing to resist, K.M. slid off the sink and tried to pull up
her shorts, but Mr. Willis pushed her. K.M. stumbled and caught herself on the toilet,
2
and Mr. Willis penetrated her from behind. K.M. stopped resisting at this point
because she was scared and “didn’t know what to do.”
Mr. Willis left the house but later returned “to check on [K.M.] because he
knew [she] was crying.” K.M. testified that Mr. Willis “asked if it felt like he forced
[her],” and she said yes.
K.M. called Ms. Black and asked if someone else could watch the children.
Ms. Black then called Mr. Bear, who returned home to check on K.M. When Mr.
Bear arrived, he found K.M. crying and asked what was wrong. Before K.M.
answered, Mr. Bear’s three-year-old daughter said, “Daddy, I saw Uncle Ivan kissing
[K.M.] in the bathroom.” K.M. began crying harder and explained that Mr. Willis had
forced her into the bathroom and forced himself on her. Mr. Bear immediately called
the Bureau of Indian Affairs (BIA) police and BIA officers arrested Mr. Willis a few
hours later.
B. Procedural History
On November 12, 2013, a federal grand jury returned a single-count
indictment alleging that Mr. Willis “knowingly engaged and attempted to engage in a
sexual act with [K.M.], by using force.”
In a pretrial motion, the government gave notice of its intent to offer evidence
pursuant to Rule 413 of the Federal Rules of Evidence of two prior sexual assaults
involving Mr. Willis while he was a juvenile. Mr. Willis filed a motion to exclude his
juvenile records and all information gleaned from those records, including the Rule
413 evidence. He also moved to suppress statements he made during a custodial
3
interview with two federal agents. And Mr. Willis moved under Rule 412 to admit
evidence of specific instances of K.M.’s sexual behavior. The district court admitted
the Rule 413 evidence and denied Mr. Willis’s remaining motions.
The parties tried the case to a jury in the United States District Court for the
Western District of Oklahoma. The jury found Mr. Willis guilty. He now appeals.
III. DISCUSSION
On appeal, Mr. Willis challenges the district court’s evidentiary rulings,
described above. He further asserts that an investigating agent improperly vouched
for K.M.’s credibility when he testified at trial. Finally, Mr. Willis argues he is
entitled to a new trial based on cumulative error. We address each of these issues in
turn.
A. Evidence of Prior Sexual Assaults
Mr. Willis first argues the district court erred by admitting evidence of the two
prior sexual assaults. We review the admission of evidence for abuse of discretion,
United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008), and will not
reverse if the district court’s ruling “falls within the bounds of permissible choice in
the circumstances and is not arbitrary, capricious or whimsical,” United States v.
Sturm, 673 F.3d 1274, 1286 (10th Cir. 2012) (internal quotation marks omitted).
In addition, events before and during trial may determine the scope of our
review. “We have stated often the general rule that in evaluating the correctness of
the district court’s rulings, the appellate court may consider the entire record
developed from the trial even though such evidence may not have been presented
4
during the suppression hearing,” but we have applied the rule in practice “only in
cases in which the trial evidence supported the district court’s earlier ruling at the
suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993)
(internal quotation marks and brackets omitted). “Because ‘the district court should
have the first opportunity to correct its mistake,’ we ordinarily ‘will not consider trial
evidence which undermines a district court decision rendered at a pretrial suppression
hearing.’” United States v. Bass, 661 F.3d 1299, 1303 (10th Cir. 2011) (quoting
Parra, 2 F.3d at 1065). “The district court may consider trial testimony if the
defendant renews the suppression motion at trial, but the court ordinarily need not do
so if counsel fails to alert the court to how the evidence has been altered or
supplemented at trial and why the change would affect the ruling.” Id. (citation
omitted). In Bass, the defendant “renewed his motion [to suppress] twice at trial but
the renewals were perfunctory” because the defendant merely stated he wanted to
renew his objection. Id. The defendant “did not so much as hint that he believed he
had a ground for suppression that had not been fully vetted at the suppression
hearing.” Id. Accordingly, “we address[ed] only the record from the suppression
hearing.” Id. at 1304.
Here, the district court held a pretrial evidentiary hearing before ruling on the
admissibility of the prior-acts evidence. Specifically, the two women who claimed to
be victims of the prior sexual assaults testified about the circumstances surrounding
those events, and, based on their testimony, the district court admitted the evidence
under Rule 413. At trial, however, both women testified differently than they had at
5
the evidentiary hearing. When the government rested, Mr. Willis stated only that he
“object[e]d to Federal Rule 413 witnesses, [A.M.] and [A.N.], being present.” Mr.
Willis did not identify new grounds for excluding the Rule 413 evidence and did not
otherwise explain why the district court should reconsider its pretrial evidentiary
ruling in light of the new testimony provided at trial. We therefore limit our review to
the evidence presented at the pretrial hearing and do not consider trial evidence
contradicting the district court’s decision.
In criminal sexual-assault cases, a district court may “admit evidence that the
defendant committed any other sexual assault.” Fed. R. Evid. 413(a). Indeed, we have
recognized a “presumption in favor of admission” of such evidence. United States v.
Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998). But before evidence is admitted under
Rule 413, the district court must determine whether the evidence “meet[s] three
threshold requirements”: (1) that the defendant is accused of a sexual-assault offense;
(2) that the evidence is evidence of another sexual-assault offense by the defendant;
and (3) that the evidence is relevant. United States v. Guardia, 135 F.3d 1326, 1328
(10th Cir. 1998).
Although there is no dispute that Mr. Willis was accused of sexually assaulting
K.M., Mr. Willis contends the other incidents did not rise to the level of sexual
assault. And he asserts the evidence was not relevant. Moreover, even if the evidence
were relevant and otherwise satisfied Rule 413’s requirements, Mr. Willis argues the
district court should have excluded the evidence under Rule 403 as substantially
more prejudicial than probative.
6
1. Evidence of Other Sexual Assaults
At the pretrial evidentiary hearing, the district court first heard testimony from
A.M.,1 a woman who dated Mr. Willis in middle school. A.M. testified that, in 2007,
after they had stopped dating, she and Mr. Willis ran into each other at a basketball
game. She voluntarily left the game with Mr. Willis and began “making out” with
him in a dugout on the high school softball fields. According to A.M., she consented
to the kissing but told Mr. Willis to stop when he touched her breasts, laid her down,
and “got on top.” She testified that she told him repeatedly to stop and when he did
not, she eventually hit or shoved him. Mr. Willis then stopped but “started laughing
at [A.M.], and then he told [her] not to tell anybody.” On cross-examination, A.M.
testified she could not remember whether she hit or pushed Mr. Willis. She also
admitted that, in interviews right after the incident, she had told police that Mr.
Willis had stopped after she said no and told him she had a boyfriend. The incident
was reported to the police, but no charges were filed against Mr. Willis.
Mr. Willis argues this incident was “nothing more than a teenaged make-out
session which was terminated when [A.M.] said so.” But, under Rule 413, “sexual
assault” includes “any conduct prohibited by 18 U.S.C. chapter 109A.” Among other
things, Chapter 109A criminalizes “abusive sexual contact,” i.e., sexual contact
achieved by using force or by threatening or placing the other person in fear of death,
serious bodily injury, or kidnapping. 18 U.S.C. §§ 2241(a), 2244(a)(1). “Sexual
1
Because A.M. and A.N. were both minors at the time of the alleged sexual
assaults, we use their initials rather than their full names.
7
contact,” in turn, is defined as “the intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.” 18. U.S.C. § 2246(3). And the level of force necessary under
§ 2251(a)(1) includes “such physical force as is sufficient to overcome, restrain or
injure a person; or the use of a threat of harm sufficient to coerce or compel
submission by the victim.” United States v. Reyes Pena, 216 F.3d 1204, 1211 (10th
Cir. 2000) (internal quotation marks omitted) (interpreting the word “force” in
applying sentencing enhancement under U.S.S.G. § 2A3.1(b)(1), which permits a
four-level increase if the offense involves conduct prohibited by § 2241(a)).
Although A.M. testified inconsistently about whether she had to physically
push or hit Mr. Willis, if the factfinder believed her testimony, there was sufficient
evidence to establish an offense under 18 U.S.C. § 2241(a). A.M. testified Mr. Willis
intentionally touched her breasts, laid her down, and got on top of her despite her
protests. After Mr. Willis stopped, he told A.M. not to tell anybody, and A.M. was
disturbed enough that she reported the incident to her counselor, who reported it to
the police. And Mr. Willis’s lying on top of A.M. until she hit or pushed him, could
be considered physical force sufficient to restrain A.M. Although the question is
close, we cannot conclude the district court abused its discretion in determining the
incident qualified as a sexual assault for purposes of Rule 413.
At the pretrial evidentiary hearing, the district court also heard from A.N., a
woman who testified that she and Mr. Willis grew up in the same neighborhood in
8
Choctaw, Mississippi. In 2008, when Mr. Willis was sixteen and A.N. was fourteen
or fifteen, Mr. Willis was at A.N.’s house while A.N.’s mother was drinking with a
group of friends. Mr. Willis and A.N. also began drinking and, at some point, A.N.
passed out. A.N. recalled sitting in the kitchen drinking, but her next memory was
waking up in a bedroom as her mother banged on the door. As A.N. awoke, she felt
“some pain in [her]” and felt someone on top of her. And when A.N.’s mother turned
on the lights, Mr. Willis stood up from the bed and A.N. saw that she and Mr. Willis
were not wearing pants or underwear. A.N. reported the incident to a neighbor, who
called the police. Mr. Willis was charged with rape but ultimately pled guilty to
battery.
Mr. Willis argues there was no sexual assault because there was no evidence of
lack of consent and no evidence of a sexual act because A.N. was unconscious. The
district court construed the incident as conduct that would violate 18 U.S.C.
§ 2242(2), which makes it a crime to “engage[] in a sexual act with another person if
that other person is . . . (A) incapable of appraising the nature of the conduct; or (B)
physically incapable of declining participation in, or communicating unwillingness to
engage in, that sexual act.” A.N. testified—and Mr. Willis did not dispute—that
when she regained consciousness, Mr. Willis was on top of her, she felt pain in her
groin area, and neither she nor Mr. Willis were wearing underwear. This evidence
supports the district court’s conclusion that a sexual act occurred while A.N. was
incapacitated and unable to consent.
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2. Relevance
The district court must also make a threshold determination of relevance—
“that is, the evidence must show both that the defendant had a particular propensity,
and that the propensity it demonstrates has a bearing on the charged crime.” Guardia,
135 F.3d at 1332.
Here, whether Mr. Willis used force to overcome lack of consent was the only
disputed issue at trial. And the evidence tended to show that, in each prior incident,
Mr. Willis engaged in sexual activity where the other party either did not or could not
consent. Thus, the prior-acts evidence demonstrated a propensity that was directly
relevant to the only issue for the jury to decide.
3. Rule 403
Finally, the district court was required to decide whether the evidence was
admissible under Rule 403 of the Federal Rules of Evidence. Id. at 1330. This
analysis requires balancing of multiple factors, including how clearly the prior act
was proved, how probative it is to the material fact, how seriously disputed the
material fact is, and whether the government can use any less prejudicial evidence.
United States v. Benally, 500 F.3d 1085, 1090 (10th Cir. 2007).
When the district court made its pretrial decision, “[n]either party addresse[d]
whether the government [could] obtain less prejudicial evidence.” The district court
therefore did not weigh this factor but found the other factors weighed in favor of
admission. First, as explained above, both A.M. and A.N. testified at the pretrial
hearing, and their testimony supported a finding that each act occurred. And the
10
material fact—whether Mr. Willis used force to overcome lack of consent—was the
only issue and was hotly disputed. In considering the final factor, the probative value
of the prior-acts evidence, the analysis
will depend on innumerable considerations, including the similarity of
the prior acts to the acts charged, the closeness in time of the prior acts
to the charged acts, the frequency of the prior acts, the presence or lack
of intervening events, and the need for evidence beyond the testimony
of the defendant and alleged victim.
Guardia, 135 F.3d at 1331 (citations omitted).
Here, the factors related to the probative value of the evidence weigh in favor
of admission. First, the acts are quite similar. Each incident involved a girl in her
mid- to late teens who was Mr. Willis’s friend or acquaintance. In each situation, the
events escalated from what could be considered harmless interaction to a situation of
forced sexual activity. And in each instance, Mr. Willis disregarded the lack of
consent of the female involved. Although the prior acts happened in 2007 and 2008
and thus there was a “five-year time lapse between the prior acts and the act
charged,” the district court correctly concluded the lapse “does not negate [the prior
acts’] probative value.” Indeed, we have held “there is no time limit beyond which
prior sex offenses by a defendant are inadmissible.” United States v. Meacham, 115
F.3d 1488, 1492 (10th Cir. 1997). The five-year lapse here is not sufficiently long to
undermine the probative value of the evidence. Moreover, there was no need for
evidence beyond the testimony of A.M. and A.N. to establish the prior sexual
assaults. Cf. Guardia, 135 F.3d at 1331–32 (affirming the exclusion of prior-acts
evidence under Rule 403 where an elaborate presentation including expert testimony
11
would have been required to explain each prior incident and whether it was
appropriate under the standard of care applicable to the defendant-physician).
Mr. Willis argues the Rule 413 evidence was not sufficiently probative under
Rule 403 because the prior acts occurred while he was a juvenile. But, as explained
below, the district court did not err in denying Mr. Willis’s motion related to his
juvenile records. Moreover, Mr. Willis has not cited any authority for the proposition
that juvenile misconduct is per se inadmissible under Rule 413. See United States v.
Caplette, 365 F. App’x 833, 834 (9th Cir. 2010) (unpublished) (“The fact that the
prior crime was committed by [the defendant] while he was a juvenile may be an
appropriate consideration in determining whether to admit evidence of that crime, but
. . . evidence of a juvenile crime is not categorically inadmissible.”).2 Thus, the mere
fact that Mr. Willis was a minor at the time of his alleged sexual assaults against
A.M. and A.N. does not render evidence of those events inadmissible, and we cannot
say his status as a juvenile conclusively outweighs the other factors showing the
probative value of the evidence.
In sum, the district court analyzed the evidence presented at the evidentiary
hearing, had the opportunity to assess the demeanor of the witnesses, and concluded
the Rule 413 requirements were satisfied and any potential prejudice did not
2
Although not precedential, we find the reasoning of unpublished opinions,
including those from other jurisdictions, instructive. See 10th Cir. R. 32.1
(“Unpublished opinions are not precedential, but may be cited for their persuasive
value.”); Fed. R. App. P. 32.1; Grynberg v. Kinder Morgan Energy Partners, L.P.,
805 F.3d 901, 904 n.2 (10th Cir. 2015) (“Although unpublished, out-of-circuit district
court opinions lack precedential value, we find the reasoning of such decisions cited
here to be instructive under the circumstances of this case.”).
12
substantially outweigh the probative value of the evidence. This conclusion was not
an abuse of discretion.
B. Juvenile Records
Mr. Willis also challenges the means by which the government obtained the
prior-acts evidence. In an interview with two federal agents, Mr. Willis disclosed
that, on two prior occasions, he had been accused of sexual offenses, both of which
occurred while Mr. Willis was a minor living in Mississippi. The agents investigated
further by requesting Mr. Willis’s records from the Choctaw Tribal Youth Court (the
Tribal Court). And the Tribal Court released Mr. Willis’s juvenile records to FBI
Special Agent Scott Billings, who used the records to identify and contact A.M. and
A.N.
Mr. Willis argues the records were available only because the Tribal Court
failed to follow its expungement rules. In particular, Choctaw Youth Code § 11-3-35
mandates the destruction of juvenile records when a minor turns eighteen and has
completed the terms of his probation. Because the Tribal Court failed to destroy Mr.
Willis’s records, he asserts “a Due Process interest in making sure that the
Mississippi Band of Choctaw Indians follows its own unambiguous rules regarding
the destruction of such records.”3
3
At oral argument on appeal, Mr. Willis for the first time asserted that his due
process rights were violated not by the mere release of his juvenile records but
because Agent Billings was able to secure a copy of the juvenile records, despite the
Tribal Court’s refusal to release the records to defense counsel. Because this
argument was raised for the first time at oral argument, it is “considered waived.”
Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998). Moreover,
13
But we have previously rejected the argument that a statute requiring
expungement creates a due process right preventing post-expungement disclosure of
a defendant’s criminal history. In Nilson v. Layton City, we recognized “that the right
to privacy safeguards individuals from government disclosure of personal
information,” but the protection does not apply to expunged criminal records because
a defendant has no legitimate expectation of privacy related to such records. 45 F.3d
369, 371–72 (10th Cir. 1995); see also Sealed Appellant v. Sealed Appellee, 130 F.3d
695, 699 (5th Cir. 1997) (“There is no constitutional basis for a ‘right to
expungement.’”); Duke v. White, 616 F.2d 955, 956 (6th Cir. 1980) (“The right to
expungement of state records is not a federal constitutional right.”).
Mr. Willis urges us to apply a different rule to juvenile records, citing
heightened privacy concerns applicable in juvenile cases. Here, however, we are not
required to and do not decide whether Nilson applies to juvenile expungement. Even
if we assume Mr. Willis had a due process right in having his juvenile records
destroyed, without a showing of prejudice we would still affirm the district court’s
decision. See United States v. Caceres, 440 U.S. 741, 752–53 (1979) (concluding that
IRS’s failure to follow its own regulations did not constitute a due process violation
absent a showing of prejudice resulting from reasonable reliance on compliance).
Mr. Willis cannot make such a showing here.
Mr. Willis conceded he obtained a copy of his records from the government at or
before the pretrial evidentiary hearing. And Mr. Willis has shown no prejudice from
the delay in receiving his records.
14
Mr. Willis concedes he disclosed the earlier incidents and thereby gave the
federal agents the necessary information to independently investigate the previous
assaults and to identify witnesses, even without the use of his juvenile records.
Although use of the records likely simplified the agents’ investigation, Mr. Willis
cannot demonstrate prejudice resulting from the release of his juvenile records due to
his own disclosure of the prior sexual encounters. Cf. United States v. Griffin, 48
F.3d 1147, 1150 (10th Cir. 1995) (holding the independent-source doctrine “permits
the introduction of evidence initially discovered during, or as a consequence of, an
unlawful search, but later obtained independently from activities untainted by the
initial illegality”). We therefore reject his due process argument.
C. Custodial Statements
Mr. Willis also asserts the district court should have granted his motion to
suppress his statements to the federal agents, which he argues “were involuntary and
illegally obtained.”4 We are not persuaded.
At the suppression hearing, BIA Special Agent Andrew Willey and FBI
Special Agent Scott Billings testified about their interactions with Mr. Willis. Agent
Willey testified that he began investigating K.M’s allegations on September 22 and
4
After the government rested at trial, Mr. Willis perfunctorily stated that he
“re-urge[d] his motion to suppress,” but he failed to argue that one of the agents
provided testimony not given at the suppression hearing and failed to explain how the
new testimony might have altered the district court’s decision. Accordingly, we limit
our review to the evidence presented at the pretrial hearing and do not consider any
trial evidence that contradicts the district court’s denial of the motion to suppress. See
United States v. Bass, 661 F.3d 1299, 1303–04 (10th Cir. 2011).
15
contacted Agent Billings to assist. Both agents went to KCDC to interview Mr. Willis
on September 25, 2013.
After introducing themselves to Mr. Willis, the agents explained they wanted
to talk about K.M.’s allegations of sexual assault and presented Mr. Willis with a
form explaining his Miranda rights. Mr. Willis read the form, acknowledged he
understood it, and asked for an attorney. The agents immediately acknowledged they
could not ask about the sexual-assault allegations. But they told Mr. Willis if he
changed his mind and wanted to talk, he should contact them.
The agents then stayed with Mr. Willis for about thirty minutes, until
correction officers returned. During this time, Agent Willey asked for, and Mr. Willis
provided, routine personal information, including date of birth, social security
number, height, weight, and place of birth. Agent Willey also explained the
investigation might lead to charges different than those for which Mr. Willis had
been arrested, and Mr. Willis asked if he would be appointed a public defender.
As the agents prepared to leave, Mr. Willis asked if it was too late to change
his mind and to speak with them. The agents asked if he meant right then or after he
talked to an attorney, and Mr. Willis “clarified . . . that he was talking about right at
the moment.” Agent Billings reminded Mr. Willis of his Miranda rights by again
having him read the waiver form and specifically informed Mr. Willis that “he was
waiving his attorney and that he could stop talking at any time if he wanted to.” After
Mr. Willis again read the waiver form, Agent Billings verbally confirmed, point by
point, that Mr. Willis understood his rights. Mr. Willis signed the form before the
16
agents asked any questions about K.M.’s allegations. Both agents testified they did
not use any physical or emotional pressure against Mr. Willis. Mr. Willis did not
introduce any evidence to the contrary.
After signing the form, Mr. Willis gave a verbal statement to Agents Willey
and Billings and then prepared a written statement while the agents were present. In
total, the interview lasted about an hour and a half.5
After hearing this evidence, the district court orally denied the motion to
suppress. It later issued a written order concluding that Mr. Willis spoke to Agents
Willey and Billings after knowingly and voluntarily waiving his right to counsel and
to remain silent.
Relying on Edwards v. Arizona, 451 U.S. 477 (1981), Mr. Willis contends the
district court erred in reaching that conclusion. In Edwards, the Supreme Court held
that if a defendant “expresse[s] his desire to deal with the police only through
counsel, [he] is not subject to further interrogation by the authorities until counsel
has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Id. at 484 (emphasis
5
The agents did not record the interview, but Agent Willey took notes and
Agent Billings prepared a summary. Mr. Willis argues law enforcement should have
recorded all interviews in this case, but he has not provided any authority to support
the conclusion that a failure to record a defendant’s statement, standing alone,
warrants suppression. Mr. Willis cites United States v. Bundy, 966 F. Supp. 2d 1180(D.N.M. 2013), but there, the officers’ reports lacked critical information and the
officers were unable to recall the details of the interrogation. Id. at 1187. Thus, the
lack of recording was important because there was nothing to help fill in the missing
details in the report or to otherwise refresh the officers’ memories. Here, the agents
recalled the interview with Mr. Willis and also had access to their notes.
17
added). The Supreme Court has since instructed that, “Edwards does not foreclose
finding a waiver of Fifth Amendment protections after counsel has been requested,
provided the accused has initiated the conversation or discussions with the
authorities.” Minnick v. Mississippi, 498 U.S. 146, 156 (1990). And in United States
v. Obregon, we found a voluntary waiver of the right to counsel when a defendant
initially requested an attorney but then asked the investigating agent “what would
happen to him if he told her what she wanted to know.” 748 F.2d 1371, 1380–81
(10th Cir. 1984). Thus, even where a defendant invokes his right to counsel, he may
waive that right if the waiver is voluntary and constitutes “a knowing and intelligent
relinquishment or abandonment of a known right or privilege, a matter which
depends in each case ‘upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the accused.’” Edwards,
451 U.S. at 482 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Here, the agents ceased questioning Mr. Willis about K.M’s allegations as
soon as he invoked his right to counsel. As the district court concluded, “there was no
evidence even remotely suggesting coercive actions by law enforcement officers.”
See United States v. Lopez, 437 F.3d 1059, 1064–65 (10th Cir. 2006). Although
Agents Willey and Billings asked Mr. Willis for routine background information
while waiting for correctional officers to return, such questions do not render
Mr. Willis’s statements involuntary. See United States v. Lara-Garcia, 478 F.3d
1231, 1235 n.3 (10th Cir. 2007) (explaining that questions about identity and other
personal information typically do not require Miranda warnings).
18
When the correctional officers arrived and the agents began to leave, it was
Mr. Willis who resumed the conversation by indicating he had changed his mind and
wanted to talk. Even then the agents asked Mr. Willis to clarify that he wanted to talk
immediately, without first consulting counsel, and the agents again advised Mr.
Willis of his Fifth Amendment rights. Under these facts, we agree with the district
court that Mr. Willis knowingly and intelligently waived his right to counsel.
Accordingly, we affirm the district court’s denial of the motion to suppress.
D. Evidence of K.M.’s Sexual Behavior
The district court also denied Mr. Willis’s pretrial motion to admit evidence of
K.M.’s sexual behavior. We review this determination for abuse of discretion. United
States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008).
In sexual-offense cases, evidence of the victim’s sexual behavior is generally
inadmissible. Fed. R. Evid. 412(a). But an exception allows “evidence of specific
instances of a victim’s sexual behavior, if offered to prove that someone other than
the defendant was the source of semen, injury, or other physical evidence.” Id.R. 412(b)(1)(A). This exception applies “[w]here the prosecution has directly or
indirectly asserted that the physical evidence originated with the accused.” Id. R. 412
advisory committee’s note to 1994 amendment.
Mr. Willis asserts the district court erred in excluding evidence that K.M. had
sex with her boyfriend at the Bear/Black residence before her encounter with Mr.
Willis. Specifically, Mr. Willis moved to introduce the report from K.M.’s sexual-
assault examination, which showed that semen in K.M.’s underwear matched DNA
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samples from both Mr. Willis and K.M.’s boyfriend. According to Mr. Willis, this
evidence established K.M.’s motive to lie: she did not want her boyfriend to know
she had sex with Mr. Willis, and she did not want Mr. Bear and Ms. Black to know
she had been having sex in their house while their children were present.
Mr. Willis’s argument fails for several reasons. First, this is not a case where
the government sought to prove the charges against Mr. Willis by showing that
physical evidence originated exclusively with him. Consequently, Mr. Willis’s
reliance on our decision in United States v. Begay, 937 F.2d 515 (10th Cir. 1991), is
misplaced. There, we reversed the defendant’s conviction and remanded for a new
trial because the district court had excluded evidence of past sexual assaults against
the child-victim that was directly relevant to the source of physical evidence. We
concluded the evidence should have been admitted to fully explain the victim’s
physical injuries and to support the defense theory that the injuries were caused by a
previous assailant rather than by the defendant, who denied having any sexual contact
with the victim. Id. at 523, 526. The same rationale does not apply here because Mr.
Willis admits he had sex with K.M. Thus, the government had no need to rely on the
physical evidence to establish that fact.
This case is similar to United States v. Nez, where the defendant “did not
dispute the act of intercourse nor his involvement therein.” 661 F.2d 1203, 1205
(10th Cir. 1981). And in both this case and Nez, “the tendered testimony regarding
the victim’s past sexual behavior did not encompass behavior with [the defendant].”
Id. Under such circumstances, we held the district court properly excluded the
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evidence as irrelevant to the issue of consent. Id. at 1205–06. The same is true here.
Evidence that K.M. had sex with another individual does not tend to make it more or
less probable that K.M. consented to sex with Mr. Willis. Accordingly, that evidence
was irrelevant to the only issue at trial. See Fed. R. Evid. 401(a). The district court
therefore did not exceed its discretion in excluding it.
Moreover, Mr. Willis cannot show prejudice because he was able to present
other evidence of K.M.’s potential motive to lie. On cross-examination, K.M.
admitted that Mr. Bear and Ms. Black would have been disappointed if they learned
she had consensual sex with Mr. Willis. And Ms. Black confirmed K.M.’s
assumption, testifying she would be upset if she learned K.M. had engaged in
consensual sex with Mr. Willis. Thus, Mr. Willis was able to introduce his defense
theory to the jury even without the evidence of K.M.’s prior sexual behavior. Under
these circumstances, even if the district court erred in excluding the evidence—and it
did not—the error was harmless.
E. Vouching
Mr. Willis also argues the district court allowed Agent Willey to improperly
vouch for K.M.’s credibility. Although we generally review evidentiary rulings for
abuse of discretion, the government contends plain-error review is required because
Mr. Willis’s objections to Agent Willey’s testimony were not sufficiently specific.
See United States v. Taylor, 514 F.3d 1092, 1096 (10th Cir. 2008) (“[W]here a party
seeks on appeal to raise an issue not squarely presented to the district court in order
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to allow it to exercise its judgment in the first instance[,] we traditionally review only
for plain error.”).
Here, K.M. gave different accounts about whether Mr. Willis penetrated her
during the assault: she initially reported to Officer Ortega that Mr. Willis had not
penetrated her but later told Agent Willey that he had. When asked at trial about the
inconsistency, Agent Willey explained that “sometimes sexual assault victims are just
ashamed to report or state what has happened to them. Sometimes they’re scared to
do it. Sometimes they don’t remember.” When the government asked whether the
tendency to forget or be afraid is more frequent with younger victims, defense
counsel objected that Agent Willey was testifying “as an expert witness as to the way
children respond differently than adults” during an investigation. The district court
sustained the objection.
The government continued:
Q. [BY THE GOVERNMENT] Did it surprise you that her
disclosure was different than it had previously been?
A. No.
Q. Did you believe her?
A. Yes.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
Q. [BY THE GOVERNMENT Did you believe her?
A. Yes.
We agree with the government that Mr. Willis did not adequately bring the
vouching issue to the district court’s attention. Defense counsel first objected on the
specific ground that Agent Willey had offered expert opinions about child witnesses
and then simply stated “objection,” without explanation, when the government asked
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Agent Willey whether he believed K.M. Nowhere in the record did defense counsel
assert that the questions elicited improper vouching. To the contrary, defense counsel
asked Agent Willey to reiterate his testimony about K.M.’s credibility. During cross
examination, defense counsel asked, “And you have stood before this jury today and
vouched for her credibility; isn’t that correct?” and Agent Willey responded, “I
believe her.” Thus, Mr. Willis not only failed to state a specific objection, his own
counsel reemphasized that Agent Willey believed K.M.
We therefore review for plain error, which requires Mr. Willis to establish
(1) error, (2) that is plain, which (3) affects his substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Here, we
resolve Mr. Willis’s vouching argument on the basis that he has not shown that Agent
Willey’s testimony affected his substantial rights. To satisfy this requirement, a
defendant must demonstrate a reasonable probability that the error influenced the
outcome of the trial. United States v. Hinson, 585 F.3d 1328, 1338 (10th Cir. 2009).
Mr. Willis has not made that showing here.
As discussed, there was no dispute that Mr. Willis penetrated K.M.; the only
issue was consent. Thus, Agent Willey’s testimony that he believed K.M. when she
changed her initial statement and reported that penetration had occurred was not
relevant to the only issue before the jury. And even considering Agent Willey’s
testimony more broadly as a comment on K.M.’s overall credibility, Mr. Willis has
not argued that there is a reasonable probability the jury would not have convicted
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him absent the testimony. Thus, even if improper vouching occurred, which is an
issue we do not decide, any error was harmless.6
F. Cumulative Error
Finally, Mr. Willis claims that even if none of the alleged errors individually
warrant reversal, the cumulative effect of the errors deprived him of a fair trial. “A
cumulative-error analysis aggregates all errors found to be harmless and ‘analyzes
whether their cumulative effect on the outcome of the trial is such that collectively
they can no longer be determined to be harmless.’” United States v. Toles, 297 F.3d
959, 972 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d 1462, 1470
(10th Cir. 1990) (en banc)). There must be at least two errors before we may find
cumulative error. See United States v. Thomas, 749 F.3d 1302, 1307 (10th Cir. 2014).
But we have held that the district court did not err in admitting the evidence of prior
sexual assaults, Mr. Willis’s custodial statements were made after a knowing and
voluntary waiver of his right to counsel, and evidence of K.M.’s sexual history was
properly excluded. Thus, at most, we have assumed one error for purposes of our
analysis: that Agent Willis was permitted to vouch for K.M.’s credibility. Under
these circumstances, we reject Mr. Willis’s argument because there are not multiple
errors to cumulate.
6
Even if Mr. Willis adequately preserved his vouching objection and we
applied an abuse-of-discretion standard, we would still review for harmlessness and
would therefore reach the same result. See United States v. Harlow, 444 F.3d 1255,
1266 (10th Cir. 2006) (treating vouching as a non-constitutional error and therefore
examining whether vouching had a substantial influence on the outcome of trial).
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IV. CONCLUSION
For the above reasons, we AFFIRM the district court in all respects.
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