United States v. Perry Nation , 543 F. App'x 677 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30288
Plaintiff - Appellee, D.C. No. 1:11-cr-00113-RFC-1
v.
MEMORANDUM*
PERRY NATION,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted October 10, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Defendant-Appellant Perry Nation appeals his conviction of two counts of
aggravated sexual abuse in violation of 18 U.S.C. §§ 1153(a) and 2241(c), and his
sentence to 235 months in prison. We have jurisdiction pursuant to 28 U.S.C. §
1291, and now affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
First, the district did not abuse its discretion in admitting the rebuttal
testimony of the government’s expert witness Stephanie Knapp, an FBI Child and
Adolescent Forensic Interviewer. On cross-examination of government witnesses
and in its case-in-chief, the defense sought to raise the inference that the alleged
victims were incredible because they had each delayed disclosing the abuse for
several years. Defense counsel asked each of the victims about their failure or
unwillingness to disclose immediately, and asked the victims’ mother and other
witnesses whether they had ever been told of the abuse previously or noticed any
signs of abuse. Since the defense had implicitly, but repeatedly, attacked the
victims’ credibility based on their failure to reveal the abuse at or near the time it
occurred, the district court did not abuse its discretion in permitting the
government to rebut that attack by introducing Knapp’s testimony about the
general characteristics of child victims of sexual abuse and the time it takes for
such victims to disclose the incidents. See United States v. Bighead, 128 F.3d
1329, 1330-31 (9th Cir. 1997).
Second, Defendant challenges the qualification of Knapp as an expert under
Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). “Daubert’s tests for the
admissibility of expert scientific testimony do not require exclusion of expert
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testimony that involves specialized knowledge rather than scientific theory.”
Bighead, 128 F.3d at 1330 (citing United States v. Cordoba, 104 F.3d 225 (9th Cir.
1997)). Defendant failed to object to Knapp’s testimony on the ground that she did
not possess professional qualifications that would have satisfied Daubert. We
therefore review for plain error. Even assuming that Knapp’s testimony as to
scientific studies of child abuse victims went beyond “specialized knowledge,”
where Knapp’s testimony that was based on her specialized knowledge was
substantially similar to the results of the scientific studies, admission of this
evidence was not plain error.
Third, Defendant argues the government failed to disclose Knapp as an
expert witness. However, Federal Rule of Criminal Procedure 16(a)(1)(G) only
requires the government to disclose any expert witnesses that it will call “during its
case-in-chief at trial.” That express language indicates that “the government
ordinarily need not disclose the names of rebuttal witnesses.” Fed. R. Civ. P.
16(a)(1)(G); see also Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009).
Fourth, Defendant argues that Knapp’s testimony improperly bolstered the
credibility of the victims. Knapp testified as to the “general behavioral
characteristics” of victims of sexual violence she had encountered during her
career. Bighead, 128 F.3d at 1330 (quoting United States v. Hadley, 918 F.2d 848,
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853 (9th Cir. 1990). No “improper buttressing” occurs when the expert witness
“testifie[s] only about ‘a class of victims generally,’ and not the particular
testimony of the child victim in this case.” Id. at 1331 (quoting Hadley, 918 F.2d
at 852). Knapp’s testimony was no different; there was no improper vouching
here. Cf. United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985) (reversing
where expert witness testimony sought to establish that “the complaining witnesses
were able to distinguish reality from fantasy and truth from falsehood” and was
“not limited to . . . a discussion of a class of victims generally”), overruled on other
grounds by United States v. Morales, 108 F.3d 1031, 1035 n.1 (9th Cir. 1997) (en
banc).
Fifth, Defendant argues that Knapp’s references to studies on the reporting
of child abuse violated Defendant’s rights under the Confrontation Claude of the
Sixth Amendment, which only reaches testimonial evidence. No objection was
made, so we review for plain error. “To rank as ‘testimonial,’ a statement must
have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially
relevant to later criminal prosecution.” Bullcoming v. New Mexico, 131 S. Ct.
2705, 2714 n.6 (2011) (alteration marks in original) (quoting Davis v. Washington,
547 U.S. 813, 822 (2006)). The statistical studies Knapp referenced are not
testimonial because their “primary purpose” was not to “establish or prove past
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events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.
The studies contained no evidence or proof as to the “past events” of this case.
There was no plain error in admitting this testimony.
Finally, “in light of the factors set forth in 18 U.S.C. § 3553(a)” the district
court did not impose a substantively unreasonable sentence. See generally United
States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009); United States v. Carty, 520
F.3d 984 (9th Cir. 2008) (en banc). The court carefully weighed the 18 U.S.C. §
3553(a) factors, noting the gravity of the crimes, the defendant’s lengthy criminal
history, and the need to protect the public and deter sexual abuse. The sentence is
not disproportionate to the crimes of raping one’s own daughter and sexually
molesting children within one’s care, and was within the Guidelines.
AFFIRMED.
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