United States v. Whiteman ( 2022 )

Appellate Case: 21-8095 Document: 010110748514 Date Filed: 10/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8095
(D.C. No. 2:20-CR-00121-SWS-1)
DALCO GABRIEL WHITEMAN, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Dalco Gabriel Whiteman appeals the final judgment in his criminal case,
challenging his convictions for multiple counts of aggravated sexual abuse and
abusive sexual conduct and his 852-month prison sentence. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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I. Background
In 2020, a grand jury charged Mr. Whiteman with seven counts of sexual
abuse against seven different victims in Indian country.1 The timing of the charged
offenses spanned from 1988 to 2013. Each of the alleged victims was a minor at the
time of the offense, and several of them were under age 12.
Mr. Whiteman was tried by a jury. The government presented expert
testimony by a licensed psychologist regarding the general dynamics of sexual abuse,
the general characteristics of victims of sexual abuse, and the general characteristics
of sex offenders. Each of the alleged victims testified. Mr. Whiteman sought to
undermine the accuracy of the victims’ memories and suggested they were motivated
to lie. Mr. Whiteman testified and denied all the allegations. He also presented
witnesses who testified about his good character and the victims’ motives to lie.
The jury convicted Mr. Whiteman on Counts 1-5 and 7.2 The district court
sentenced him to 852 months’ imprisonment (71 years), plus 15 years’ supervised
release.
II. Discussion
On appeal, Mr. Whiteman challenges the district court’s failure to give a
limiting instruction before the expert’s testimony and the wording of the instruction
1
The grand jury charged Mr. Whiteman with violations of 18 U.S.C.
§§ 2241(c), 2244(a)(5), 2244(b), 2246(2)(D), 2246(3), and 1153.
2
On the government’s motion, the district court dismissed Count 6 for lack of
evidence.
2
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the court ultimately gave the jury after the close of the evidence. He also contends
that his prison sentence is substantively unreasonable and the court abused its
discretion in denying his request for a downward variance.
A. Limiting Instruction on Expert Witness Testimony
Prior to trial, Mr. Whiteman moved to exclude testimony by the government’s
expert witness.3 He argued the purpose of the testimony was to impermissibly bolster
and vouch for the victims’ credibility. The district court denied the motion. Among
other findings, the court concluded that the expert’s testimony was not precluded by
Federal Rule of Evidence 403 because it was highly probative and the risk of unfair
prejudice was small because its purpose was to inform and educate the jury on topics
beyond the common knowledge of the average person—specifically victim and
abuser behavior—rather than to offer any particular conclusion.
But the district court placed limits on the expert’s testimony. He was not to
comment on the credibility of any witness. He was precluded “from placing any
mathematical figures, percentages, likelihoods, or estimates on the rate of false
accusations by alleged child victims.” R., Vol. 1 at 194. And in light of the fact the
expert had not interviewed anyone involved in the case, his testimony had to remain
generic: he could “not offer any opinions about how his testimony might relate to the
facts of Mr. Whiteman’s case.” Id. (brackets and internal quotation marks omitted).
3
Mr. Whiteman raises on appeal only instructional errors with regard to the
expert’s testimony. He does not challenge the district court’s admission of that
testimony. We discuss the denial of his motion to exclude the expert’s testimony and
his continuing objections to it for context only.
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At a conference before the trial, Mr. Whiteman renewed his objection to the
expert’s testimony as vouching for the victims. The district court granted him a
continuing objection as to vouching issues. The court also stated it would instruct the
jury before the expert’s testimony that its purpose was “limited solely to educate
them on some of the nature and circumstances involving or arising with regards to
sexual abuse victims. Whether it’s applicable to these alleged victims is solely a
determination that the jury and the jury alone will make regardless of any expert.”
Id., Vol. 4 at 36.
The government called the expert as its first witness. Contrary to its statement
before trial, the district court did not give a limiting instruction to the jury before the
expert’s testimony. Mr. Whiteman did not object or ask for an instruction at that
time.
At one point during the expert’s testimony, the district court interrupted when
he began to describe a study of 560 children. In a sidebar with counsel, the court
reiterated its direction that the expert was precluded from addressing percentages
regarding false accusations. Mr. Whiteman renewed his objection to the expert’s
testimony at that time.
Later in his testimony, when asked what factors a sex offender might consider
in choosing a victim, the expert stated, “Some have an age category, that they may
have a preference for 6 to 9-year-olds or . . . 11- to 12-year olds or 15 . . . .” Id. at
193. Mr. Whiteman objected, asserting that the expert was “vouching for everything
that is being said here. . . . He’s wanting to give specific numbers and specific ages,
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and . . . I believe it’s irrelevant. I believe it’s more prejudicial than probative, and I
don’t believe it’s helpful.” Id. The government responded that the expert was
addressing “age targeting,” and that the ages he mentioned were not related to the
victims in the case, whose ages the expert did not know. Id. (internal quotation
marks omitted). The district court overruled the objection, concluding the expert
could properly testify “as to characteristics and types of behavior that are common in
a generic sense.” Id. at 194.
During the final instruction conference, the district court offered the following
limiting instruction regarding the expert’s testimony:
You heard the testimony of Dr. Frederick Lindberg concerning
matters such as delay in reporting alleged abuse, grooming and
maintenance behavior, traumatic bonding, lack of resistance to alleged
abuse, potential effects of sexual abuse on victims, accommodation by an
alleged victim, and possible characteristics and types of sex offenders.
Dr. Lindberg did not know any details about this case or interact with the
Defendant or alleged victims in this case. His testimony was admitted only
for informational purposes to help you evaluate other testimony in this trial.
It is solely up to you to decide the facts of this case. Remember that
you alone decide how much of a witness’s testimony to believe and how
much weight it deserves.
Id., Vol. 1 at 390. Mr. Whiteman objected once again that the expert’s testimony had
“vouch[ed] for the believability of . . . the alleged victims.” Id., Vol. 4 at 764. He then
objected to the proposed instruction, stating only that “it seems to me that this instruction
imbues credibility upon” the expert. Id. The district court overruled the objection,
concluding the instruction was necessary to properly limit consideration of the expert’s
testimony to “a discussion of the characteristics and, in a generic sense, the impacts of
sexual abuse and/or sex offenders.” Id. The court again granted Mr. Whiteman a
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continuing objection to anything related to the expert. It delivered the limiting instruction
to the jury, as proposed, along with the other instructions. The jury returned guilty
verdicts on Counts 1-5 and Count 7.
On appeal, Mr. Whiteman argues the district court erred by (1) failing to
deliver a limiting instruction before the expert witness testified, and (2) giving the
limiting instruction as phrased after the close of the evidence.
1. Standard of Review
We review the jury instructions de novo and view them in the
context of the entire trial to determine if they accurately state the governing
law and provide the jury with an accurate understanding of the relevant
legal standards and factual issues in the case. In doing so, we consider
whether the district court abused its discretion in shaping or phrasing a
particular jury instruction and deciding to give or refuse a particular
instruction.
United States v. Christy, 916 F.3d 814, 854 (10th Cir. 2019) (citation, brackets,
ellipsis, and internal quotation marks omitted). “An abuse of discretion occurs when
a judicial determination is arbitrary, capricious or whimsical. We will not overturn a
discretionary judgment by the trial court where it falls within the bounds of
permissible choice in the circumstances.” United States v. Shumway, 112 F.3d 1413,
1419 (10th Cir. 1997) (citation and internal quotation marks omitted).
Under Federal Rule of Criminal Procedure 30(d), “[a] party who objects to any
portion of the instructions or to a failure to give a requested instruction must inform
the court of the specific objection and the grounds for the objection before the jury
retires to deliberate.” A “[f]ailure to object in accordance with this rule precludes
appellate review, except as permitted under Rule 52(b).” Id. Federal Rule of
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Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”
2. Failure to Give Limiting Instruction Before Expert’s
Testimony
Mr. Whiteman asserts that, contrary to the district court’s statement in
conference before the trial that it would do so, it “neglected to” give a limiting
instruction to the jury prior to the expert’s testimony. Aplt. Opening Br. at 19. The
government argues this issue must be reviewed only for plain error because
Mr. Whiteman did not object to the court’s failure to give such an instruction at that
time. Mr. Whiteman does not dispute the government’s assertion. He points to no
place in the record where he objected to the district court’s failure to instruct the jury
before the expert’s testimony. Mr. Whiteman therefore prevented the district court
from “correct[ing] any instructional mistake[],” thereby “avoid[ing] the burdens of an
unnecessary retrial.” Jones v. United States, 527 U.S. 373, 387-88 (1999). Thus, our
review is for plain error. See United States v. Banks, 761 F.3d 1163, 1195-96
(10th Cir. 2014) (reviewing for plain error contention regarding the timing of a
curative instruction when defendant failed to make a contemporaneous objection).
But Mr. Whiteman fails to argue for plain error review. He does not mention
that standard in his opening brief. Nor does he address it in his reply brief, even after
being alerted to the issue by the government. See United States v. Leffler, 942 F.3d
1192, 1199 (10th Cir. 2019) (“In response to the Government’s brief, Defendant does
not even address the preservation issue—much less attempt to argue he preserved his
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claim for review on appeal.”). Consequently, because Mr. Whiteman “fails to argue
plain error in his briefing, his argument fails.” United States v. Cushing, 10 F.4th
1055, 1077 (10th Cir. 2021) (“The failure to argue for plain error and its application
on appeal surely marks the end of the road for an argument for reversal not first
presented to the district court.” (brackets and internal quotation marks omitted)), cert.
denied, 142 S. Ct. 813 (2022).
3. Error in Limiting Instruction Regarding Expert Testimony
The limiting instruction the district gave after the close of the evidence began
as follows: “You heard the testimony of Dr. Frederick Lindberg concerning matters
such as delay in reporting alleged abuse, grooming and maintenance behavior,
traumatic bonding, lack of resistance to alleged abuse, potential effects of sexual
abuse on victims, accommodation by an alleged victim, and possible characteristics
and types of sex offenders.” R., Vol. 1 at 442. Mr. Whiteman argues this portion of
the instruction—which he characterizes as labeling and summarizing the expert’s
theories—was erroneous because it “implied to the jury that the court considered the
subjects of Dr. Lindberg’s testimony . . . to be established, valid scientific facts and
theories that supported the victims’ testimony and hence their credibility.” Aplt.
Opening Br. at 20. He contends that the court should have instead instructed the jury,
consistent with its wording during the conference before trial, that the purpose of the
expert’s testimony was “limited solely to educate them on some of the nature and
circumstances involving or arising with regards to sexual abuse victims.” R., Vol. 4
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at 36. Mr. Whiteman did object to the district court’s proposed limiting instruction
before the jury retired to deliberate.4
We agree with the government that the jury instructions, as a whole,
“provide[d] the jury with an accurate understanding of the relevant legal standards
and factual issues in the case.” Christy, 916 F.3d at 854 (internal quotation marks
omitted). And Mr. Whiteman fails to show that the district court’s phrasing of the
limiting instruction regarding the expert’s testimony amounts to an abuse of
discretion. See id. Although the instruction listed the topics of the expert’s
testimony, it did so using terms including “alleged,” “potential,” and “possible.” R.,
Vol. 1 at 442. This belies Mr. Whiteman’s assertion that, simply by describing the
4
An objection to a jury instruction “must inform the court of the specific
objection and the grounds for the objection.” Fed. R. Crim. P. 30(d). “[T]he heart of
the rule” is that objections must be made “with sufficient specificity and
distinctness.” United States v. Agnew, 931 F.2d 1397, 1401 n.3 (10th Cir. 1991)
(internal quotation marks omitted). In objecting to the district court’s proposed
limiting instruction, Mr. Whiteman stated only that “it seems to me that this
instruction imbues credibility upon” the expert. R., Vol. 4 at 764. He did not
elaborate on how the instruction did so, he did not point to the language he now
challenges, nor did he offer alternative language. It is uncertain whether Mr.
Whiteman’s objection adequately apprised the district court of the specific ground on
which he now challenges the limiting instruction. See United States v. Bedford, 536
F.3d 1148, 1153 n.4 (10th Cir. 2008) (noting defendant’s “objection did not rise to
the level of specificity required to preserve the precise issue he raises on appeal”);
United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007) (“A party’s
objection to a jury instruction must be sufficiently clear such that the grounds stated
in the objection are obvious, plain, or unmistakable.” (brackets and internal quotation
marks omitted)).
But the government does not argue that Mr. Whiteman failed to preserve this
issue in the district court; it has therefore forfeited the opportunity to do so. See
United States v. Faust, 795 F.3d 1243, 1252 (10th Cir. 2015).
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content of the expert’s testimony, the district court placed its imprimatur on those
subjects, imbued the expert’s testimony with credibility, or implied its acceptance of
the expert’s theories. Furthermore, the limiting instruction cautioned that the jury
alone would decide the facts of the case, including “how much of a witness’s
testimony to believe and how much weight it deserves.” Id. The court reiterated that
caution in other instructions. See id. at 408, 434.
In addition, the district court’s limiting instruction regarding the expert’s
testimony directly followed its more general instruction on opinion testimony, which
stated that “[a] witness who has knowledge, skill, experience, training, or education
may testify and state an opinion concerning such matters.” Id. at 441. But the court
clearly instructed that the jury alone must decide the weight accorded such testimony:
You are not required to accept such an opinion. You should
consider opinion testimony just as you consider other testimony in this trial.
Give opinion testimony as much weight as you think it deserves,
considering the education and experience of the witness, the soundness of
the reasons given for the opinion, and other evidence in the trial.
Id.We hold, contrary to Mr. Whiteman’s contention, that the district court’s
limiting instruction did not vouch for the credibility of the expert or the victim
witnesses. He fails to show that the wording used was “arbitrary, capricious or
whimsical,” or that it exceeded “the bounds of permissible choice in the
circumstances.” Shumway, 112 F.3d at 1419 (internal quotation marks omitted).
Moreover, the instructions as a whole clearly informed the jury that it alone would
determine the credibility of all of the witnesses.
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B. Substantive Reasonableness of Sentence
Mr. Whiteman argues his 852-month prison sentence is substantively
unreasonable and the district court abused its discretion in denying his motion for a
downward variance.
At sentencing, the court calculated Mr. Whiteman’s total offense level as 43
and his criminal history category as I. It discussed the minimum and maximum
sentences applicable to each offense, then concluded that, under the advisory
guidelines, Mr. Whiteman was subject to the following imprisonment terms: life on
Counts 1 and 2; 120 months on Counts 3 and 4; 240 months on Count 5; and
24 months on Count 7. The government argued “that to promote respect for the law,
to reflect the seriousness of this offense, and to be just punishment for these offenses,
the sentence should take the number of victims and the span of time the Defendant’s
crimes covered into account.” R., Vol. 4 at 842-43. It asked the court to impose
consecutive sentences consistent with the advisory guidelines ranges and statutory
minimum sentences.
Mr. Whiteman requested a variant sentence of a total of 30 years’
imprisonment on all counts. He pointed to his age (54 years), his ailing health, his
lack of previous criminal history, his military service, his productive membership in
his tribe, and his marriage and parenting history. He also asserted the weakness of
the case against him and the lack of physical injury to the victims. Mr. Whiteman’s
sister spoke, asking the court to show lenience. Mr. Whiteman allocuted, reiterating
his denial of the charges.
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In imposing Mr. Whiteman’s sentence, the district court noted he stood
convicted of six counts of aggravated sexual abuse involving six separate victims,
following a trial by jury that the court believed was fair. It pointed to the evidence of
the nature, significance, and longevity of the harm the victims suffered, as well as
Mr. Whiteman’s conduct. It touched on his military service and the timing of the
victim’s disclosures. The court ultimately stated it did not believe “that a sentence
. . . collectively[] as to all victims in this matter is appropriate” because their “harms
and circumstances are separate and distinct” and they each “should have the
consequences and the unfortunate impact upon them recognized.” Id. at 863. It
therefore concluded that consecutive sentences should be imposed as to each count.
The court then sentenced Mr. Whiteman to consecutive prison sentences as follows:
Count 1 – 30 years
Count 2 – 30 years
Count 3 – 42 months
Count 4 – 36 months
Count 5 – 36 months
Count 7 – 18 months
for a total sentence of 852 months or 71 years. The court stated this sentence was
sufficient but not greater than necessary to accomplish the objectives of 18 U.S.C.
§ 3553(a).
Mr. Whiteman objected to the consecutive nature of the sentencing, arguing it
was much greater than necessary considering his age and health. Without
elaboration, he also objected “under the factors of [§] 3553(a).” Id. at 868.
Overruling that objection, the district court stated, “Based upon the nature and
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characteristics of the crimes committed and the victims, [and] in consideration of the
circumstances,” it had sentenced Mr. Whiteman “at the low end of the mandatory
minimum” on Counts 1 and 2, and “far below the guideline sentence” on the
remaining counts, adding that “the consecutive nature of those sentences” was
appropriate “in consideration of [§] 3553(a) as well as [§] 3553(b).” Id.
1. Standard of Review
Our review is for an abuse of discretion. See United States v. Beltran,
571 F.3d 1013, 1018 (10th Cir. 2009) (request for variance); United States v.
Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011) (substantive reasonableness). “Our
appellate review for reasonableness includes . . . a substantive component, which
relates to the length of the resulting sentence.” Balbin-Mesa, 643 F.3d at 787(internal quotation marks omitted). “[A] challenge to the sufficiency of the § 3553(a)
justifications relied on by the district court implicates the substantive reasonableness
of the resulting sentence. To determine the substantive reasonableness of a sentence,
we look at the totality of the circumstances.” Id. (citation and internal quotation
marks omitted). In doing so, “we afford substantial deference to the district court.”
Id. at 788 (internal quotation marks omitted).
Mr. Whiteman does not dispute that the court properly calculated and
considered the applicable guidelines ranges. His sentence is therefore presumptively
reasonable on appeal. See id. “[T]he presumption of reasonableness is a
commonsense reflection of the respective roles of district court, appellate court, and
Sentencing Commission in the determination of the appropriate punishment in a
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particular case.” Id. at 788 n.4 (internal quotation marks omitted). Mr. Whiteman
argues the circumstances in his case rebut the presumed reasonableness of his
sentence. We disagree.
2. Unnecessarily Long Sentence
Mr. Whiteman asserts that, although the district court departed from the
guidelines by not imposing a life sentence, an 852-month sentence for a 54-year-old
man equates to a life sentence. He argues this sentence is far greater than necessary
to reflect the seriousness of his offenses, to provide for just punishment, and to have
a general deterrent effect. Mr. Whiteman contends that concurrent sentences would
have provided ample time for him to obtain available correctional treatment, and if he
is released in his mid-80s, the public will have been and will continue to be protected
from further crimes, particularly in light of the exacting conditions imposed for his
supervised release. He maintains that a 30-year total sentence would be a significant
punishment and would send a sufficient message regarding the seriousness of his
crimes. He further argues the sentence imposed will only remove him from society
for the remainder of his life and will not correct or rehabilitate him. Finally,
Mr. Whiteman points to his military service, his productive membership in his tribe,
and the continuing support from his family.
These contentions “are nothing more than a disagreement with the district
court about how the evidence should be evaluated and weighed.” United States v.
Branson, 463 F.3d 1110, 1112 (10th Cir. 2006). In particular, Mr. Whiteman ignores
the district court’s focus on the number of victims and the significant harms they
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each have suffered. On appeal, we consider only “whether the sentence fell within
the range of rationally available choices that facts and the law at issue can fairly
support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (internal
quotation marks omitted). Here, Mr. Whiteman’s discussion of various factors that
might weigh in favor of a shorter sentence fails to show that the sentence imposed
does not fall within that range.
3. Sentence Disparity
Mr. Whiteman contends his sentence does not fairly reflect the sentencing
factor in 18 U.S.C. § 3553(a)(6), which requires a sentencing court to “consider . . .
the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” Citing statistics on the
average sentence length for sexual abuse offenders in a Sentencing Commission
publication, Mr. Whiteman points to longer average sentences for Native Americans
subject to mandatory minimum penalties as compared to other races.5 He asserts
these statistics equate to a significant and unwarranted disparity between his sentence
and the sentences of non-Native American sexual abuse offenders in the federal
system. But Mr. Whiteman acknowledges that the cited statistics include a very
small percentage of offenders who, like him, were convicted of offenses with
5
See U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Sex
Offenses in the Federal Criminal Justice System 28 (January 2019),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2019/20190102_Sex-Offense-Mand-Min.pdf
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mandatory minimum sentences of twenty years or more. And he fails to indicate
what, if any, portion of those offenders were convicted of multiple sexual abuse
crimes involving multiple victims over a 25-year time span. Without more, these
statistics fail to show that Mr. Whiteman’s sentence is substantively unreasonable
due to an unwarranted sentence disparity “among defendants with similar records
who have been found guilty of similar conduct.” § 3553(a)(6).
Mr. Whiteman further argues that, had he been convicted in state court in
Wyoming for sexual abuse of a minor, his maximum sentence would be 20 years’
imprisonment on a single count under Wyoming law, see Wyo. Stat. Ann.
§ 6-2-315(b), as compared to the 30-year mandatory minimum and advisory
guidelines life-imprisonment sentences on Counts 1 and 2 for his offenses committed
in Indian country. According to Mr. Whiteman, this, too, equates to a significant and
unwarranted sentencing disparity under § 3553(a)(6). But we have rejected such a
proposition, holding “that a disparity between the federal-court sentence and the
sentence that would be imposed for a like offense in state court does not make the
sentence unreasonable.” Branson, 463 F.3d at 1110. This is so because “[a]djusting
federal sentences to conform to those imposed by the states where the offenses
occurred would not serve the purposes of § 3553(a)(6) but, rather, would create
disparities within the federal system.” Id. at 1112. Thus, Mr. Whiteman’s argument,
which is based entirely on § 3553(a)(6), is foreclosed by Branson. See United States
v. Begay, 974 F.3d 1172, 1176-77 (10th Cir. 2020).
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Mr. Whiteman fails to demonstrate that his sentence is substantively
unreasonable or that the district court abused its discretion in denying his request for
a downward variance.
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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