United States v. Woody ( 2022 )

Appellate Case: 21-2007 Document: 010110726939 Date Filed: 08/19/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 19, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2007
FRANCIS WOODY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:18-CR-03902-JB-1)
_________________________________
Todd B. Hotchkiss, Albuquerque, New Mexico, for Defendant-Appellant.
Raquel Ruiz-Velez, Assistant United States Attorney (Fred J. Federici, Acting United
States Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff-
Appellee.
_________________________________
Before MORITZ, EBEL, and KELLY, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
In August 2019, Defendant-Appellant Francis Woody was tried and convicted
of one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(c)
and 2246(2)(C), and two counts of abusive sexual contact in violation of 18 U.S.C.
Appellate Case: 21-2007 Document: 010110726939 Date Filed: 08/19/2022 Page: 2
§§ 1153, 2244(a)(5) and 2246(3). The district court sentenced him to life
imprisonment on each count, to run concurrently.
Evidence presented against Mr. Woody at trial included incriminating
statements he made during two separate encounters with federal agents, as well as a
doctor’s testimony that one of Mr. Woody’s victims identified Mr. Woody as her
abuser during a medical examination. Mr. Woody appeals his convictions, asserting
that the district court should have suppressed his statements to the federal agents
because the agents violated his constitutional rights and, separately, should have
excluded the doctor’s testimony as inadmissible hearsay. Mr. Woody also challenges
his life sentence as substantively unreasonable. Exercising our jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), we find no merit in these arguments and thus
AFFIRM Mr. Woody’s convictions and sentence.
I. BACKGROUND
A. Factual Background
In October 2016, Jane Doe 1 was an eight-year-old member of the Navajo
Nation who lived with her mother and stepfather Mr. Woody in Ojo Encino, New
Mexico, most of the time. While temporarily staying with her father in Torreon, New
Mexico, Jane Doe 1 told her father that Mr. Woody had been sexually abusing her.
Her father brought her to a hospital, where she was examined in the emergency room
by Dr. Stephen Pilon. Dr. Pilon took Jane Doe 1’s medical history, at which point
Jane Doe 1 told Dr. Pilon that Mr. Woody had been molesting her by kissing her and
touching her genitals, with the last incident of abuse occurring about 30 days prior to
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the hospital visit. Dr. Pilon examined Jane Doe 1 and found no signs of physical
injury. He then reported the sexual abuse to Navajo Nation Social Services, which
referred the case to the Federal Bureau of Investigation (FBI).
On April 25, 2018, FBI Special Agents Ross Zuercher and Thaddeus Clancy
sought out Mr. Woody to follow up on the report and located him at his niece’s house
in New Mexico. The agents drove an unmarked car and were dressed in plain
clothes, with their firearms concealed. Upon arriving at the house, they saw a man
lying under a car in the front yard, performing repairs. They approached the man and
identified themselves as FBI agents looking for Mr. Woody. The man identified
himself as Mr. Woody. Agent Zuercher asked Mr. Woody if he would speak to them
and suggested going somewhere with more privacy than the front yard, where Mr.
Woody’s girlfriend was also present. Mr. Woody agreed and led the agents inside his
niece’s mobile home. The agents sat on one couch in the living room while Mr.
Woody sat on the couch closer to the door, three or four feet away from the agents.
The ensuing conversation was recorded by Agent Zuercher.
After preliminary questioning and general discussions about Mr. Woody and
his family, Agent Zuercher asked Mr. Woody about the specific claims of abuse
made by Jane Doe 1. Mr. Woody denied the allegations at first. Agent Zuercher told
Mr. Woody that if the abuse was “a one-time thing,” it could be “explained away”
and would be “no big deal.” Supp. R. Vol. II, Exh. 3A at 30:35-31:20, 31:36-31:41.
Mr. Woody said that he might have done it when he was drunk because he could not
remember any of the alleged abuse. Agent Zuercher then assured Mr. Woody that he
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would not be arrested that day, but emphasized that the agents needed “to know what
happened that night just so we can make sure that we’ve covered everything that we
needed to cover.” Id. at 37:23-37:38. Mr. Woody eventually admitted that he once
touched and partially penetrated Jane Doe 1’s vagina with his finger. At Agent
Zuercher’s request, Mr. Woody drew a diagram of the penetration and wrote an
apology letter to Jane Doe 1. Mr. Woody denied any other instances of abuse against
Jane Doe 1 or another alleged victim, however. The agents told Mr. Woody they
might call him in later for further questioning or a polygraph test. Shortly thereafter,
they shook his hand and left the residence.
After this April 25 interview, Agent Zuercher spoke with Jane Doe 2, whose
mother had been married to Mr. Woody for about ten years until their separation in
May 2006, when Jane Doe 2 was approximately thirteen years old. The three lived
on the Navajo Nation in New Mexico during the marriage. Jane Doe 2 recalled
multiple instances where she was sexually abused as a child by Mr. Woody, the
earliest being a time when he touched her vagina over her clothes when she was
about six years old. The abuse continued until Jane Doe 2 and her mother left Mr.
Woody’s house in 2006.
After interviewing Jane Doe 2, Agent Zuercher contacted Mr. Woody and
asked him to meet again for more questioning. Mr. Woody agreed and they
scheduled an October 23, 2018, meeting at a state police station in Cuba, New
Mexico, approximately thirty miles from Mr. Woody’s town. When Mr. Woody
arrived at the station at 9:00 AM on October 23, Agent Zuercher let him in and shook
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his hand. He also introduced Mr. Woody to Agent Marcus McCaskill, an FBI
polygraph examiner. Both agents were in plain clothes, and Agent Zuercher’s
weapon was concealed while Agent McCaskill was unarmed. Their badges were
likewise not visible. Mr. Woody was not patted down, searched, handcuffed, or
otherwise restrained.
Agent McCaskill led Mr. Woody to an interview room where the polygraph
equipment had been set up. Agent McCaskill closed the door to the room behind
them but did not lock it; Agent Zuercher waited outside the room. Agent McCaskill
and Mr. Woody sat down facing each other at the table with the equipment. Agent
McCaskill explained to Mr. Woody that he would make sure Mr. Woody understood
his rights and confirmed that Mr. Woody was still willing to take the polygraph test.
Agent McCaskill also told Mr. Woody that he was free to leave at any time if he did
not wish to waive his rights or take the polygraph examination. Agent McCaskill
then showed Mr. Woody a standard advice-of-rights form that explained the rights set
forth in Miranda v. Arizona, 384 U.S. 436 (1966). Agent McCaskill read portions of
the form aloud and explained it to Mr. Woody. After going through the form, Agent
McCaskill asked Mr. Woody if he understood his rights, and Mr. Woody said that he
did.
Next, Agent McCaskill asked Mr. Woody if he wanted to answer questions
without an attorney present. Mr. Woody twice responded, “I guess,” and both times
Agent McCaskill told him that he needed a clearer answer than that, stating, “If you
want an attorney, if you don’t want to answer questions today, then that’s your right.”
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R. Vol. III at 101. In response to Agent McCaskill’s request for a yes or no answer
to whether Mr. Woody would answer questions without counsel, Mr. Woody said, “I
will.” Id. at 102. Mr. Woody also signed the advice-of-rights form, which included a
waiver of his Miranda rights, on Agent McCaskill’s computer screen.
Agent McCaskill then pulled up the FBI’s separate consent form for polygraph
interviews and went over it with Mr. Woody. He reiterated that Mr. Woody did not
have to take the polygraph and could leave at any time. Mr. Woody signed the form
and agreed to continue with the polygraph examination.
With the forms sorted out, Agent McCaskill began asking questions, but did
not yet begin the polygraph test. He first asked Mr. Woody about his background,
criminal history, alcohol use, health, and employment before asking about the
specific sexual abuse allegations made by Jane Doe 2. Agent McCaskill expected
Woody to deny the allegations, but instead Mr. Woody admitted to using Jane Doe
2’s hand to touch his penis. Because of this admission, Agent McCaskill decided not
to continue with the polygraph and stepped out of the room to inform Agent
Zuercher. The two agents came back in together and restarted the questioning of Mr.
Woody without the polygraph, recording the conversation. Mr. Woody repeated his
admission of an incident where he sexually abused Jane Doe 2 when she was about
ten years old, and further admitted to a similar act on a second occasion during that
same time period. Mr. Woody also admitted to digitally penetrating Jane Doe 1’s
vagina on one occasion when she was very young.
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After the questioning and at the agents’ request, Mr. Woody wrote an apology
letter to Jane Doe 2. The agents shook his hand and thanked him for talking to them.
Mr. Woody then left the station.
B. Procedural Background
A grand jury charged Mr. Woody with aggravated sexual abuse of Jane Doe 1,
in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(C), and two counts of abusive
sexual contact with Jane Doe 2, in violation of 18 U.S.C. §§ 1153, 2244(a)(5) and
2246(3).
Prior to his jury trial, Mr. Woody filed motions to suppress the statements he
made during both the April 25 encounter with agents and the October 23 encounter
with agents, asserting that the agents violated his constitutional rights in obtaining
the statements. The government opposed the motions, and the district court denied
them.
Separately, the government sought to introduce testimony from Dr. Pilon
regarding Jane Doe 1’s statements identifying Mr. Woody as her abuser. The
government asserted that this testimony was admissible under the hearsay exception
for statements made for the purpose of medical diagnosis. See Fed. R. Evid. 803(4).
Mr. Woody opposed the motion to admit, but the district court determined that the
testimony was indeed admissible under Rule 803(4).
As a result, during Mr. Woody’s two-day trial in August 2019, the jury heard
evidence of Mr. Woody’s admissions to the agents and Jane Doe 1’s identification of
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him as her abuser to Dr. Pilon. The jury convicted Mr. Woody of all three charged
counts.
After the trial, a Presentence Investigation Report (PSR) was prepared for Mr.
Woody’s sentencing. It calculated a total offense level of 43 and a criminal history
category of I, resulting in a recommended sentence of life imprisonment under the
federal sentencing guidelines. Mr. Woody asked the district court to vary downward
to a sentence of 30 years based on sentencing factors such as his age, good
relationship with his family, and work ethic. The government sought a life sentence
based on the PSR recommendation and the 18 U.S.C. § 3553(a) factors. The district
court ultimately sentenced Mr. Woody to life imprisonment on each count, to be run
concurrently.
On February 5, 2021, Mr. Woody filed a timely appeal of his convictions and
his sentence, which we now review.
II. DISCUSSION
Mr. Woody raises four distinct issues to this court. He appeals the denial of
his motion to suppress the statements he made during the April 25 FBI interview, the
denial of his motion to suppress his October 23 statements to the FBI agents, the
admission of Dr. Pilon’s testimony as to Jane Doe 1’s identification of Mr. Woody,
and the substantive reasonableness of his life sentence. We address and reject each
argument in turn.
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A. Motion to Suppress April 25 Statements
Mr. Woody first argues that the district court erred in denying his motion to
suppress the statements he made when the FBI agents interviewed him at his niece’s
home on April 25, 2018, because his Fourth Amendment rights were violated when
the agents seized him without his consent.1 In reviewing the denial of a motion to
suppress, we examine the district court’s legal determinations de novo and its factual
findings for clear error, United States v. Cook, 599 F.3d 1208, 1213 (10th Cir. 2010),
though the facts here are largely undisputed. We also “view[] the evidence in the
light most favorable to the district court’s [factual] finding.” Id.The Fourth Amendment protects citizens against “unreasonable searches and
seizures.” U.S. Const. Amend. IV. In applying the Fourth Amendment to alleged
seizures by law enforcement, this court has distinguished between “consensual
encounters which do not implicate the Fourth Amendment”; “investigative detentions
which are Fourth Amendment seizures of limited scope and duration”; and “arrests,
the most intrusive of Fourth Amendment seizures.” United States v. Torres-Guevara,
147 F.3d 1261, 1264 (10th Cir. 1998) (quoting United States v. Shareef, 100 F.3d
1Though Mr. Woody’s arguments related to the April 25 encounter focus primarily
on the Fourth Amendment, he occasionally cites case law discussing the meaning of
“custody” under the Fifth Amendment and cursorily mentions the Fifth Amendment
as a basis for his claim. Aplt. Br. at 43 (citing United States v. Griffin, 7 F.3d 1512,
1517 (10th Cir. 1993); Aplt. Br. at 49 (“The seizure of Mr. Woody was unreasonable
in violation of his Fourth and Fifth Amendment rights.” (emphasis added)). But Mr.
Woody never makes a substantive Fifth Amendment argument as to the April 25
encounter, so to the extent that he tried to raise one, we find it inadequately briefed
and thus waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841
(10th Cir. 2005).
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1491, 1500 (10th Cir. 1996)). Mr. Woody asserts that his encounter with FBI agents
on April 25 was an investigative detention—which required at least reasonable
suspicion to be constitutional, see id.—while the government argues that the
encounter was consensual and thus did not implicate the Fourth Amendment.
Because the government has not asserted the existence of reasonable suspicion either
on appeal or to the district court below, the only question before us is whether the
encounter was consensual. If not, the encounter was an investigative detention by the
agents without reasonable suspicion, thereby violating Mr. Woody’s Fourth
Amendment rights.2 See Florida v. Royer, 460 U.S. 491, 500 (1983) (holding that the
government bears the burden of demonstrating reasonable suspicion).
In order to determine whether this encounter was consensual, we must
“consider all the circumstances surrounding the encounter to determine whether the
police conduct would have communicated to a reasonable person that the person was
not free to decline the officers’ requests or otherwise terminate the encounter.”
Florida. v. Bostick, 501 U.S. 429, 439 (1991). This court has developed a non-
exhaustive list of factors to consider in determining whether a suspect would feel free
to terminate the encounter:
[(1)] the location of the encounter, particularly whether the
defendant is in an open public place where he is within the
view of persons other than law enforcement officers;
2
Mr. Woody then asserts that his incriminating statements were “fruit of the
poisonous tree” and thus inadmissible. Aplt. Br. at 50. But because we ultimately
find the encounter consensual and constitutional, we do not address whether the
statements were fruit of any Fourth Amendment violation.
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[(2)] whether the officers touch or physically restrain the
defendant;
[(3)] whether the officers are uniformed or in plain clothes;
[(4)] whether their weapons are displayed;
[(5)] the number, demeanor and tone of voice of the
officers;
[(6)] whether and for how long the officers retain the
defendant’s personal effects such as tickets or
identification; and
[(7)] whether or not they have specifically advised
defendant at any time that he had the right to terminate the
encounter or refuse consent.
United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) (quoting United States
v. Spence, 397 F.3d 1280, 1283 (10th Cir. 2005)). No single factor is dispositive, but
the “strong presence of two or three factors” may be sufficient to support the
conclusion a seizure occurred. Id. at 1284–85 (quoting Fuerschbach v. Southwest
Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006)). We thus examine the presence
of each factor in this case, as well as other facts that Mr. Woody highlights to argue
that the encounter was a seizure.
i. Location of the encounter
As Mr. Woody notes, his conversation with the FBI agents on April 25 took
place inside his niece’s home, out of public view. This factor thus weighs in Mr.
Woody’s favor to show that the encounter was not consensual. Id. That said, we
think the weight of this factor is minimal given that Mr. Woody specifically agreed to
speak with the agents inside. See United States v. Spence, 397 F.3d 1280, 1284 (10th
Cir. 2005) (finding that the defendant’s “agreement to allow the agents inside his
home weighs toward the conclusion that the encounter was voluntary”).
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Mr. Woody also complains that the location of the agents’ initial approach, in
the home’s front yard where Mr. Woody was lying under a car, weighs against a
finding of consent because “the FBI agents showed their authority by going onto
private property without any permission” and “Mr. Woody could not just walk away
as he was at someone else’s private residence in the midst of repairing a vehicle.”
Aplt. Br. at 47, 48–49. We do not find these facts relevant to the analysis. We have
already accounted for the fact that Mr. Woody was interviewed at a private residence,
and the fact that he could not “walk away” since he was in the middle of car repairs
does not mean a reasonable person would have felt unable to “decline the officers’
request or otherwise terminate the encounter” there. Bostick, 501 U.S. at 429.
ii. Touching and physical restraints
The only touching between the officers and Mr. Woody were their handshakes
at the beginning and end of the interaction, which were certainly not gestures that
would indicate a person was not free to terminate the encounter. Though the
conversation—to which Mr. Woody agreed—took place inside the niece’s house with
the door closed, the record does not indicate that the door was locked, and indeed Mr.
Woody was sitting closer to the door than the officers on the opposite couch. Thus,
there were no physical restraints, and this factor does not weigh in favor of finding
the encounter a seizure.
iii. Uniforms and weapons
The officers were in plain clothes and never showed their weapons. This
factor, too, favors finding that the encounter was consensual.
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iv. Number and demeanor of officers
Mr. Woody does not contend that two officers were so many as to give a
reasonable person the impression that he would be unable to decline their request to
speak with them. Nor could he make such a contention, without more. See United
States v. Jones, 525 F.3d at 1242 (stating that an encounter with four agents did not
weigh in favor of concluding that the suspect was seized in light of officers’
appearance and demeanor). Furthermore, the district court found that Agents
Zuercher and Clancy “spoke to Woody throughout the interview in conversational
and respectful tones.” R. Vol. I at 414. This factor thus does not favor seizure.
v. Retention of defendants’ personal effects
The agents here did not take any personal effects from Mr. Woody at any time,
and so this factor is not relevant to our analysis.
vi. Advising of right to refuse
Mr. Woody emphasizes that the agents did not specifically inform Mr. Woody
that he had the right to refuse to speak to them. This factor thus favors a finding of
seizure, but it is by no means dispositive. To the contrary, “[t]here is no per se rule
requiring such an advisement.” United States v. Little, 18 F.3d 1499, 1505 (10th Cir.
1994) (en banc) (citations omitted).
vii. Totality of the circumstances
Viewed collectively, the above factors are not sufficient to establish that a
reasonable person in Mr. Woody’s position would have felt that he “was not free to
decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501
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U.S. at 439. The fact that the conversation took place inside a private residence and
the fact that the agents did not specifically tell Mr. Woody he was free to leave are
simply not enough to turn the encounter into an investigative detention, when
accounting for other factors such as Mr. Woody’s agreement to speak to the agents
inside, the agents’ friendly demeanor and plain-clothes appearance, and the lack of
any physical restraint on Mr. Woody.
That said, the above list of factors is non-exhaustive. Lopez, 443 F.3d at 1284.
Mr. Woody argues that certain statements made by the agents during the encounter
rendered it nonconsensual because they were deceptive.3 Specifically, he complains
that Agent Zuercher lied to him by stating that it would be “no big deal” if Mr.
Woody had abused Jane Doe 1 just one time. Aplt. Br. at 44–45. Agent Zuercher
was indeed lying to Mr. Woody with this statement. Even one instance of child
sexual abuse is a major crime, and Agent Zuercher said he was aware of that fact in
later testimony but told Mr. Woody otherwise in an effort to make him more
comfortable talking about it. R. Vol. III at 57–59.
3
Mr. Woody also notes that Agent Zuercher “used imperative phrases” to convince
Mr. Woody to talk, namely by saying “I gotta know what happened that night.” Aplt.
Br. at 37, 44. Mr. Woody does not elaborate on how such statements might be
coercive, though he does call them “accusatory,” Reply Br. at 9. But the district
court found that those statements were “spoken gently and politely rather than
aggressively or threateningly.” R. Vol. I at 416. Consequently, we find that Agent
Zuercher’s “imperative” statement that the agents needed to know what happened
would not have made a reasonable person in Mr. Woody’s position feel he was not
free to end the encounter.
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Nonetheless, we hold that Agent Zuercher’s statement that one instance of
abuse would be “no big deal” did not turn the consensual conversation into an
investigative detention. Certain forms of deception by officers can be indicative of
coercion, which would render consent to searches or seizures involuntary under the
Fourth Amendment. See United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir.
2011). But “[n]ot all deceit and trickery is improper,” id. at 1280; the surrounding
circumstances are significant to the analysis, and the operative question is whether
“deceit or trickery is used to imply an individual has no ability to refuse consent.”
Id. For example, in Harrison, the court found that an officer’s false suggestion that
there might be bombs in the defendant’s apartment was coercive and vitiated the
defendant’s consent to a search of the apartment, because the defendant was left
“with two options: (1) deny consent to search and accept the risk that a bomb had
been planted in the apartment; or (2) consent to the search”—hardly a choice at all.
Id.In contrast, here, Agent Zuercher falsely telling Mr. Woody that one instance
of abuse was “no big deal” did not affect Mr. Woody’s ability to decline to talk.
Agent Zuercher’s only lie was to minimize the consequences of a confession. While
this sort of deception may have ultimately induced Mr. Woody to keep talking, its
mechanism for doing so was not to make a reasonable person feel he could not
terminate the encounter; it was to make a reasonable person feel he had not so much
to lose by continuing the encounter and being honest. In fact, depending on the
circumstances, a reasonable person might feel freer to decline to speak with police
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after being told that the alleged crime was “no big deal.” This type of lie did not
invalidate Mr. Woody’s consent. Thus, the “deception” here does not alter our
conclusion that the April 25 encounter between Mr. Woody and the FBI agents was
consensual and so did not implicate his Fourth Amendment rights.
B. Motion to Suppress October 23 Statements
In his other motion to suppress denied by the district court, Mr. Woody argued
that his October 23, 2018, statements to the FBI agents must be excluded because the
agents violated his Fifth Amendment right against self-incrimination.4 Here there is
no genuine and material factual dispute, and we review the district court’s legal
conclusions de novo, Cook, 599 F.3d at 1213, and affirm the denial of Mr. Woody’s
motion.
The Fifth Amendment affords citizens the right to remain silent, to have an
attorney present, and to be informed of these rights when the individual is both (1) in
custody and (2) subject to interrogation by police. Miranda v. Arizona, 384 U.S. 436,
477–79 (1966). There is no dispute here that Mr. Woody was interrogated without an
attorney present when he spoke with Agent McCaskill and Agent Zuercher at the
state police station on October 23, 2018. Whether Mr. Woody was in custody at that
4
Mr. Woody makes only a cursory mention of the Fourth Amendment as a basis for
his claim that the October 23 encounter violated his constitutional rights. Aplt. Br. at
56. But he fails to make any substantive argument related to his Fourth Amendment
rights in this section, focusing instead on the application of Miranda and the Fifth
Amendment when discussing this encounter. Thus, we find any potential Fourth
Amendment arguments about the October 23 encounter waived due to inadequate
briefing. See Garrett, 425 F.3d at 841.
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time is disputed, however. Assessing whether an individual is in custody is a
totality-of-the-circumstances inquiry involving many different factors. See United
States v. Lamy, 521 F.3d 1257, 1259 (10th Cir. 2008). Though we have substantial
doubts that Mr. Woody was in custody at all—which would mean his Fifth
Amendment rights never attached—we need not wade into that fact-intensive issue
because, even if he was in custody, Mr. Woody plainly waived his Miranda rights
before making the incriminating statements at issue.
Citizens can waive their Miranda rights if the waiver is “made ‘voluntarily,
knowingly, and intelligently.’” Smith v. Mullin, 379 F.3d 919, 932 (10th Cir. 2004)
(quoting Miranda, 384 U.S. at 444). This requires that the waiver “was the product
of a free and deliberate choice rather than intimidation, coercion, or deception,” and
was “made with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it” based on the totality of the
circumstances. Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “In
determining whether rights were voluntarily waived, we consider: the suspect's age,
intelligence, and education; whether the suspect was informed of his or her rights; the
length and nature of the suspect’s detention and interrogation; and the use or threat of
physical force against the suspect.” United States v. Smith, 606 F.3d 1270, 1276
(10th Cir. 2010).
In advance of any questioning at the October 23 interrogation, Agent
McCaskill displayed and explained a form detailing Mr. Woody’s Miranda rights.
Agent McCaskill then explicitly asked Mr. Woody if he wanted to answer questions
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without an attorney present. When Woody said, “I guess,” Agent McCaskill let
Woody know that counsel could be appointed for him, but that he needed a clearer
answer. After a second “I guess,” which Agent McCaskill again said was insufficient
to waive the right, Mr. Woody eventually responded, “I will.” R. Vol. III at 100–02.
This suffices as an unambiguous waiver of his right to an attorney. Mr. Woody then
signed the advice-of-rights form, which contained a formal waiver of all his Miranda
rights.5
Mr. Woody has not identified any facts that would render his waiver
involuntary or unintelligent, nor do we see any in the record. Agent McCaskill
thoroughly explained Mr. Woody’s Miranda rights at the very beginning of the
interrogation. There is no allegation of any deficiency in Mr. Woody’s mental state
or mental capacity. The agents never threatened to use or used any physical force
against Mr. Woody. Mr. Woody argues only that his two responses of “I guess” to
the waiver request, before the unambiguous “I will” response, “rendered the waiver
of his Miranda rights invalid.” Aplt. Br. at 55–56. We are not persuaded. Clarifying
whether the suspect is in fact waiving his rights does not take away from the
suspect’s ultimate voluntary and intelligent choice to do so; to the contrary, Agent
5
Mr. Woody makes much of the fact that the polygraph examination, for which he
signed a separate consent form, never actually occurred. He notes that he “was never
informed that the consent to take a polygraph [was] invalidated.” Aplt. Br. at 54.
But the polygraph consent form was separate from the Miranda advice-of-rights
form, and the Miranda form’s waiver was not limited in scope to questions asked
during the polygraph examination. Thus, the polygraph consent form and the agents’
decision not to carry out the polygraph examination have no bearing on the question
of whether Mr. Woody waived his Miranda rights.
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McCaskill made every reasonable effort to ensure Mr. Woody’s uncoerced
willingness to continue with the interrogation here.
Consequently, Mr. Woody’s waiver of his Miranda rights at the beginning of
the October 23 interview was valid. His Fifth Amendment rights were therefore not
violated, and his subsequent incriminating statements were admissible, so we affirm
the district court’s denial of Mr. Woody’s motion to suppress the October 23
statements below.
C. Admission of Dr. Pilon’s Hearsay Statement
At the government’s request, the district court admitted testimony about Jane
Doe 1’s statement to Dr. Pilon in which she identified Mr. Woody as the person who
abused her. R. Vol. I at 345–46. Mr. Woody now challenges that evidentiary ruling
by the district court, which we review for an abuse of discretion. United States v.
Tome, 61 F.3d 1446, 1449 (10th Cir. 1995). “Our review is especially deferential
when the challenged ruling concerns the admissibility of evidence that is allegedly
hearsay.” Id.“Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered to prove the truth of the matter asserted. Under Fed. R.
Evid. 802, hearsay evidence that does not meet an exclusion or exception is generally
inadmissible at trial.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1132 (10th Cir.
2004) (quotation marks and internal citation omitted). The government does not
contest that Dr. Pilon’s testimony that Jane Doe 1 told him Mr. Woody abused her
was hearsay, under this standard definition. But the government argues, and the
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district court agreed, that the testimony was nonetheless admissible under the well-
established exception to the hearsay rule for a statement that is “made for—and is
reasonably pertinent to—medical diagnosis or treatment” and “describes medical
history; past or present symptoms or sensations; their inception; or their general
cause.” Fed. R. Evid. 803(4). The government claims that Jane Doe 1’s statement to
Dr. Pilon fits this description.
As Mr. Woody argues, “a declarant’s statement relating the identity of the
person allegedly responsible for her injuries is not ordinarily admissible under Rule
803(4) because statements of identity are not normally thought necessary to promote
effective treatment.” United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993)
(emphasis in original). But in Joe, this court joined other circuits in holding that
hearsay testimony as to a “sexual abuser’s identity is admissible under Rule
803(4) where the abuser has such an intimate relationship with the victim that the
abuser’s identity becomes ‘reasonably pertinent’ to the victim’s proper treatment.”
Id. at 1495. See also Tome, 61 F.3d at 1450.
Here, the district court applied Joe’s rule and held that the identity of Jane Doe
1’s abuser was “reasonably pertinent” to her diagnosis and treatment because it was
“necessary to determine if [she was] in a safe environment or in danger of being
abused again.” R. Vol. I at 346 (quoting United States v. Chaco, 801 F. Supp. 2d
1200, 1213 (D.N.M. 2011)). We agree. Mr. Woody was Jane Doe 1’s stepfather, a
relationship that put him in a position to continue abusing her. Knowing his identity
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was necessary for Dr. Pilon to report the abuse to the proper authorities so that it
could be investigated and halted.
Mr. Woody argues to the contrary that the sexual abuse occurred too long
before the medical examination for the identity of the abuser to be reasonably
pertinent, especially because there was no evidence of physical injury, and he also
asserts that it was not reasonably pertinent because Jane Doe 1 was not actually
living with Mr. Woody at the time of the exam (instead, she was living with her
father). But the record indicates that Mr. Woody and Jane Doe 1’s mother shared
custody of Jane Doe 1 with her father, so there was a good chance Jane Doe 1 would
be living with them again eventually, making Mr. Woody’s identity pertinent to
ending the abuse. The passage of time between the abuse and the medical exam, as
well as the lack of any apparent physical injury at the time of the exam, are also
irrelevant to the question of whether the abuser’s identity was pertinent to Jane Doe
1’s treatment or diagnosis here. “All victims of domestic sexual abuse suffer
emotional and psychological injuries, the exact nature and extent of which depend on
the identity of the abuser.” Joe, 8 F.3d at 1494. Physical injuries are therefore not
the end-all-be-all of a medical examination of an alleged minor sexual abuse victim.
Additionally, the fact that the abuse did not occur within the thirty days prior to the
exam did not mean abuse could not occur again in the future, given Mr. Woody’s
relationship to Jane Doe 1.
Mr. Woody relies on one additional case to argue that Dr. Pilon’s testimony
about Jane Doe 1’s identification of Mr. Woody was inadmissible: United States v.
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Charley, 189 F.3d 1251 (10th Cir. 1999). In Charley, the court held that the district
court abused its discretion in admitting the testimony of an expert witness under
Federal Rule of Evidence 702. There, the challenged expert was Dr. Renee Ornelas,
who had examined the two girls who were allegedly sexually abused by the
defendant. Id. at 1257. The examination occurred approximately two months after
the girls had initially disclosed the abuse, and while Dr. Ornelas found no physical
evidence of abuse at that time, she nonetheless concluded (and testified at trial) that
the girls had been abused based on conversations with the girls and their mother. Id.The court held that Dr. Ornelas’s expert opinion that “sexual abuse in fact occurred”
was not admissible under Rule 702 because the pediatrician was “merely vouching
for the credibility of the alleged victim[s],” which “encroaches upon the jury’s vital
and exclusive function to make credibility determinations, and therefore does not
‘assist the trier of fact’ as required by Rule 702.” Id. at 1267.
Mr. Woody argues that, like Dr. Ornelas in Charley, Dr. Pilon here was simply
vouching for Jane Doe 1’s credibility by testifying to her identification of Mr. Woody
as her abuser. But Charley is inapposite for multiple reasons. First, Dr. Pilon was
admitted as a fact witness rather than as a Rule 702 expert witness, given that he was
the doctor who examined Jane Doe 1 immediately after her disclosure of the abuse to
her father. As a result, Rule 702, which deals with expert opinions, does not apply as
it did to Dr. Ornelas in Charley. In fact, Dr. Pilon’s testimony here is more
analogous to that of a different doctor in Charley: Dr. Edward Junkins, the victims’
pediatrician, who examined the girls immediately after they disclosed the defendant’s
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abuse to their mother. Id. at 1256. At trial, Dr. Junkins testified, “without objection,
to the facts of the girls’ medical history and treatment, and the facts of his
examination,” and he repeated “what the girls told him” during that examination. Id.
at 1263. The court found no issue with the admission of Dr. Junkins’ testimony
under Rule 803(4), for essentially the same reasons we affirm the admission of Dr.
Pilon’s testimony here. Id. at 1263, n. 14 (“Treating professionals may relate
statements made to them by the alleged victims, as long as the statements were made
for the purposes of diagnosis or treatment.”).
Second, unlike Dr. Ornelas in Charley, Dr. Pilon’s testimony at issue in this
case did not amount to an “unconditional opinion that [the victim] was in fact
sexually abused.” Id. at 1266. Dr. Pilon was merely repeating Jane Doe 1’s own
statement as a factual matter—hearsay, but admissible hearsay—and so was not
“vouching” for her credibility by basing an expert opinion on her statements alone.
Thus, Charley does not support a different result, and we find no abuse of discretion
in the district court’s admission of Dr. Pilon’s testimony as to Jane Doe 1’s
statements.
D. Substantive Reasonableness of Sentence
The district court sentenced Mr. Woody to life imprisonment on each of the
three counts, run concurrently, rejecting Mr. Woody’s request for the statutory
minimum sentence of 30 years. Mr. Woody appeals that sentence as substantively
unreasonable.
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We review the substantive reasonableness of a sentence for an abuse of
discretion and “examine whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (quotation marks
omitted). A sentence is only substantively unreasonable if it “exceed[s] the bounds
of permissible choice, given the facts and the applicable law.” Id. “Further, we
presume a sentence is reasonable if it is within the properly calculated guideline
range.” Id. Here, the sentence of life was within guideline range properly calculated
by the PSR, and so it is Mr. Woody’s burden to rebut the presumption of
reasonableness. Id.In its written sentencing opinion, the district court identified twenty-two
factors that “put downward pressure on Woody’s sentence,” including his age and
lack of prior incarceration. R. Vol. I at 447. But it also identified fifty-three factors
that “put upward pressure to keep Woody’s sentence within the Guideline range and
give a life sentence.” Id. at 450 (quotation marks omitted). Balancing these factors,
the district court concluded that the life sentence was “sufficient, but not greater than
necessary, to comply with the four purposes that 18 U.S.C. § 3553(a)(2) enumerates.”
Id. at 457. The only reasons Mr. Woody presents to rebut the presumption that this
analysis and resulting sentence were reasonable are: (1) even if Mr. Woody was
given his requested thirty-year sentence, he would be eighty-five to ninety years old
at the time of his release; (2) Mr. Woody had no prior criminal history other than an
arrest for driving while intoxicated; and (3) Mr. Woody does not pose a risk to the
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public because he would not be living with any young girls upon his release from
prison.
Those three facts do not demonstrate that the district court’s thorough analysis
of the relevant § 3553 factors and subsequent sentence of life was an abuse of
discretion. Mr. Woody essentially asks us to redo the § 3553 analysis and reach a
different conclusion than the district court. But we find no error in the district
court’s reasoning and do not second-guess its defensible discretionary assessment of
the relevant factors. Thus, on this record, Mr. Woody has failed to rebut the
presumption that the sentence was reasonable and we affirm the district court’s
imposition of a life sentence for Mr. Woody.
III. CONCLUSION
Based on the foregoing, we AFFIRM Mr. Woody’s conviction on each count and
AFFIRM the sentence of life imprisonment on each count, run concurrently.
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