United States v. Theodore Kootswatewa ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10228
Plaintiff-Appellee,
D.C. No.
v. 3:15-cr-08034-DLR-1
THEODORE KOOTSWATEWA, ORDER AND
Defendant-Appellant. AMENDED OPINION
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted September 13, 2017
San Francisco, California
Filed March 23, 2018
Amended June 27, 2018
Before: J. Clifford Wallace and Paul J. Watford, Circuit
Judges, and W. Louis Sands,* District Judge.
Order;
Opinion by Judge Watford
*
The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
2 UNITED STATES V. KOOTSWATEWA
SUMMARY**
Criminal Law
The panel (1) amended an opinion filed March 23, 2018,
affirming a conviction for sexually abusing K.C., a
developmentally delayed 11-year-old girl; (2) denied a
petition for panel rehearing; and (3) denied on behalf of the
court a petition for rehearing en banc.
In the amended opinion:
The panel held that the district court properly exercised its
discretion in admitting under Fed. R. Evid. 803(4) K.C.’s
statements to a nurse practitioner concerning the nature of the
abuse and the identity of her abuser. The panel observed that
the statements were made for purposes of medical diagnosis
or treatment, were reasonably pertinent to that subject, and
described the inception or general cause of K.C.’s past or
present symptoms. Rejecting the defendant’s contention that
the government failed to lay an adequate foundation, the
panel explained that the declarant herself need not testify; an
adequate foundation may be laid under Rule 803(4) by
introducing objective evidence, including testimony by the
medical professional who conducted the examination, of the
context in which the statements were made. The panel
concluded that the government presented ample evidence
supporting the inference that K.C. understood that the nurse
practitioner was seeking information for purposes of
diagnosis or treatment.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. KOOTSWATEWA 3
The panel held that the district court properly exercised its
discretion in admitting under Fed. R. Evid. 801(d)(1)(B)(i)
K.C.’s statements to a law enforcement officer in order to
rebut defense counsel’s suggestion that K.C.’s in-court
testimony had been tainted by her mother’s alleged coaching.
The panel held that K.C.’s prior statements to the officer were
consistent with her in-court testimony, as required under Rule
801(d)(1)(B).
The panel held that the prosecutor’s brief and accurate
recitation of trial testimony concerning what K.C. told others
about the offense did not constitute misconduct. The panel
concluded that the prosecutor’s misstatement of the
record—that K.C. told the officer that the defendant had
“lured” her into a trailer rather than “took” her into the
trailer—amounted to harmless error.
COUNSEL
Michael L. Burke (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Helen H. Hong (argued), Special Attorney for the United
States, Office of the United States Attorney, San Diego,
California, for Plaintiff-Appellee.
4 UNITED STATES V. KOOTSWATEWA
ORDER
The opinion filed on March 23, 2018, and published at
885 F.3d 1209 is amended as follows:
At 885 F.3d at 1214, replace the first two paragraphs
appearing in the left column, beginning with the sentence
and
ending with the sentence , with the following two
paragraphs:
id. That evidence can include
testimony provided by the medical
professional who conducted the examination.
Here, the government presented ample
evidence supporting the inference that K.C.
UNITED STATES V. KOOTSWATEWA 5
understood that the nurse practitioner was
seeking information for purposes of diagnosis
or treatment. Most significantly, K.C. made
the statements in response to questions posed
by a medical professional during a medical
examination conducted at a medical facility.
Absent evidence indicating otherwise, the
district court could reasonably infer from
those circumstances that K.C. understood she
was providing information for purposes of
diagnosis or treatment. See, e.g., Lukashov,
694 F.3d at 1114–15; United States v.
Gonzalez, 533 F.3d 1057, 1062 (9th Cir.
2008); see also 30B Charles Alan Wright et
al., Federal Practice and Procedure § 6844, p.
324 (2017) (“statements made by most people
in the context of an injury-related visit to a
medical professional can be presumed to be
made for the purpose of medical treatment”).
That inference was bolstered by the nurse
practitioner’s testimony that she conducted
K.C.’s examination in an examination room,
with her stethoscope on, after measuring
K.C.’s height and weight and taking her
medical history.>
With this amendment, the panel unanimously votes to
deny the petition for panel rehearing. Judge Watford votes to
deny the petition for rehearing en banc, and Judge Wallace
and Judge Sands so recommend. The full court has been
advised of the petition for rehearing en banc, and no judge
6 UNITED STATES V. KOOTSWATEWA
requested a vote on whether to hear the matter en banc. Fed.
R. App. P. 35. The petition for panel rehearing and rehearing
en banc, filed May 29, 2018, is DENIED.
No further petitions for panel rehearing or rehearing en
banc will be entertained.
OPINION
WATFORD, Circuit Judge:
Theodore Kootswatewa was convicted following a jury
trial of sexually abusing K.C., a developmentally delayed 11-
year-old girl. On appeal, Kootswatewa challenges two of the
district court’s evidentiary rulings. Over Kootswatewa’s
hearsay objections, the court allowed a nurse practitioner and
a law enforcement officer to testify about statements K.C.
made to them during interviews conducted shortly after the
abuse occurred. We conclude that the district court properly
exercised its discretion in admitting the testimony of both
witnesses. We also conclude that Kootswatewa’s remaining
challenge to the propriety of the prosecutor’s closing
argument does not merit reversal.
I
Kootswatewa and K.C., both members of the Hopi Tribe,
lived in the same small community on the Hopi Reservation
in Arizona. Early one evening, a neighbor saw K.C. follow
a man into an abandoned trailer. Soon after, as the neighbor
approached the trailer to investigate, she saw K.C. emerge
looking scared. K.C. told the neighbor that the man had tried
UNITED STATES V. KOOTSWATEWA 7
to “rape” her. The neighbor identified the man as
Kootswatewa when he walked out of the trailer moments
later. The neighbor called the police and contacted K.C.’s
mother.
A law enforcement officer drove to the scene to
investigate. He waited for K.C.’s mother to arrive and
obtained her permission to interview K.C. During the
interview, K.C. told the officer that Kootswatewa had taken
her into the abandoned trailer, pulled down her pants, and
touched her vagina with his hand and tongue. At trial, during
the government’s rebuttal case, the district court overruled
Kootswatewa’s hearsay objection and allowed the officer to
recount K.C.’s statements to the jury. The court ruled that the
statements were admissible as prior consistent statements
because they aligned with K.C.’s trial testimony and rebutted
the implication, raised by the defense on cross-examination
of K.C., that K.C. had fabricated the alleged abuse. See Fed.
R. Evid. 801(d)(1)(B)(i).
The morning after the abuse occurred, K.C.’s mother took
her to a part of the outpatient pediatric wing of the Flagstaff
Medical Center, called the Safe Child Center. K.C. saw a
nurse practitioner there who was certified as a Sexual Assault
Nurse Examiner. The nurse practitioner conducted a sexual
assault examination of K.C., during which K.C. said that a
man who lived in a red house had recently touched her vagina
with his hand and tongue. (Multiple witnesses testified that
Kootswatewa lived in a red cinder-block house.) At trial,
during the government’s case-in-chief, the district court
allowed the nurse practitioner to recount K.C.’s statements,
again over the defense’s hearsay objection. The court ruled
that the statements were admissible under the hearsay
8 UNITED STATES V. KOOTSWATEWA
exception for statements made for purposes of medical
diagnosis or treatment. See Fed. R. Evid. 803(4).
The jury convicted Kootswatewa of aggravated sexual
abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2241(c);
abusive sexual contact, in violation of 18 U.S.C. §§ 1153,
2244(a)(5); and committing a felony offense involving a
minor while being required to register as a sex offender, in
violation of 18 U.S.C. § 2260A. The district court sentenced
Kootswatewa to 40 years in prison.
II
We first address Kootswatewa’s challenge to the
admission of the nurse practitioner’s testimony under Rule
803(4) of the Federal Rules of Evidence. Under that
provision, out-of-court statements made for purposes of
medical diagnosis or treatment are admissible as an exception
to the hearsay rule, which generally forbids admission of out-
of-court statements offered to prove the truth of the matter
asserted. A statement is admissible under Rule 803(4) if it:
“(A) is made for—and is reasonably pertinent to—medical
diagnosis or treatment; and (B) describes medical history;
past or present symptoms or sensations; their inception; or
their general cause.” Fed. R. Evid. 803(4). A statement
covered by Rule 803(4) is admissible as substantive evidence,
regardless of whether the declarant is available to testify.
Statements covered by Rule 803(4) are admissible
because the rationale for excluding hearsay statements does
not apply to them. Hearsay statements are inadmissible as a
general rule because they typically lack indicia of
trustworthiness. Unlike testimony offered in court, hearsay
statements are not made under oath and the declarant is not
UNITED STATES V. KOOTSWATEWA 9
subject to cross-examination, so the accuracy and reliability
of the statements cannot be tested. Certain categories of out-
of-court statements, however, are excepted from the rule
against hearsay because they are made under circumstances
in which the declarant would be particularly unlikely to lie.
Idaho v. Wright, 497 U.S. 805, 820 (1990). Statements made
for purposes of medical diagnosis or treatment comprise one
such category. An individual seeking medical care is unlikely
to lie about her medical history or symptoms because she
knows that “a false statement may cause misdiagnosis or
mistreatment.” White v. Illinois, 502 U.S. 346, 356 (1992).
The declarant’s selfish interest in obtaining appropriate
medical care renders statements made for purposes of
diagnosis or treatment inherently trustworthy, such that
“adversarial testing [through cross-examination] would add
little to their reliability.” Wright, 497 U.S. at 820–21.
The district court properly exercised its discretion in
admitting K.C.’s statements to the nurse practitioner because
the statements fall comfortably within the scope of Rule
803(4). K.C. spoke to the nurse practitioner as part of a
sexual assault examination. As the nurse practitioner
testified, one of the purposes of such an examination is to
diagnose any physical, psychological, or emotional injuries
the victim may have suffered and to prescribe an appropriate
course of treatment. To diagnose and treat K.C.’s injuries,
the nurse practitioner first had to find out what happened to
her, and so she asked K.C., “Did something happen?” K.C.’s
statements describing the abuse she suffered were made in
response to that question. The statements satisfied both
prongs of Rule 803(4): They were made for purposes of
medical diagnosis or treatment and were “reasonably
pertinent” to that subject; and they described the “inception”
or “general cause” of K.C.’s past or present symptoms. In
10 UNITED STATES V. KOOTSWATEWA
that respect, K.C.’s statements are no different from the
statements we have held admissible in past cases involving
child sexual abuse. See United States v. JDT, 762 F.3d 984,
1003–05 (9th Cir. 2014); United States v. Lukashov, 694 F.3d
1107, 1115 (9th Cir. 2012); Guam v. Ignacio, 10 F.3d 608,
613 (9th Cir. 1993); United States v. George, 960 F.2d 97,
99–100 (9th Cir. 1992).
Kootswatewa contends that the government failed to lay
an adequate foundation for admission of K.C.’s statements
under Rule 803(4). In particular, he asserts that although the
government established that the nurse practitioner elicited the
statements for purposes of medical diagnosis or treatment, the
government did not establish what K.C. herself was thinking
when she made the statements. As Kootswatewa correctly
points out, it is the declarant’s understanding of the purposes
for which the statements were made that matters under Rule
803(4). Ignacio, 10 F.3d at 613 n.3; 4 Christopher B. Mueller
& Laird C. Kirkpatrick, Federal Evidence § 8:75 (4th ed.
2017). The declarant herself must understand that she is
providing information for purposes of diagnosis or treatment
because that understanding is what provides assurance that
the statements are particularly likely to be truthful. United
States v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995).
Contrary to Kootswatewa’s contention, however, the
declarant herself need not testify about her subjective thought
process at the time she made the statements in question.
Indeed, the declarant need not testify at all. An adequate
foundation may be laid under Rule 803(4) by introducing
objective evidence of the context in which the statements
were made. See id. That evidence can include testimony
provided by the medical professional who conducted the
examination.
UNITED STATES V. KOOTSWATEWA 11
Here, the government presented ample evidence
supporting the inference that K.C. understood that the nurse
practitioner was seeking information for purposes of
diagnosis or treatment. Most significantly, K.C. made the
statements in response to questions posed by a medical
professional during a medical examination conducted at a
medical facility. Absent evidence indicating otherwise, the
district court could reasonably infer from those circumstances
that K.C. understood she was providing information for
purposes of diagnosis or treatment. See, e.g., Lukashov,
694 F.3d at 1114–15; United States v. Gonzalez, 533 F.3d
1057, 1062 (9th Cir. 2008); see also 30B Charles Alan
Wright et al., Federal Practice and Procedure § 6844, p. 324
(2017) (“statements made by most people in the context of an
injury-related visit to a medical professional can be presumed
to be made for the purpose of medical treatment”). That
inference was bolstered by the nurse practitioner’s testimony
that she conducted K.C.’s examination in an examination
room, with her stethoscope on, after measuring K.C.’s height
and weight and taking her medical history.
No evidence in the record negates the inference that K.C.
understood the medical purpose of her answers to the nurse
practitioner’s questions. It is true that K.C. was only 11 years
old at the time of the examination, and due to developmental
delays she had the mental capacity of a child several years
younger than that. But we have consistently held that even
young children have the capacity to understand the medical
purpose of an examination. See JDT, 762 F.3d at 988
(children between the ages of five and seven); Lukashov, 694
F.3d at 1110 (eight-year-old child); Ignacio, 10 F.3d at
610–11 (three-year-old child).
12 UNITED STATES V. KOOTSWATEWA
Kootswatewa contends that, even if K.C.’s statements
describing the nature of her abuse were admissible under
Rule 803(4), her statement identifying the perpetrator was
not. Some courts and commentators have held that
statements identifying the perpetrator of a crime are not
pertinent to medical diagnosis or treatment and therefore fall
outside the scope of Rule 803(4) and its state-law
counterparts. See 4 Mueller & Kirkpatrick, Federal Evidence
§ 8:75 n.36 (collecting cases). Our court has squarely
rejected that view, at least in cases involving child sexual
abuse. See JDT, 762 F.3d at 1003–05; Ignacio, 10 F.3d at
613; George, 960 F.2d at 99–100. We have held that medical
providers need to know who abused a child in order to protect
her from future abuse at the hands of the same perpetrator,
and to assist in diagnosing and treating the psychological and
emotional injuries caused by sexual abuse. Lukashov,
694 F.3d at 1115; George, 960 F.2d at 99. The nurse
practitioner in this case testified that she asks her patients
about the identity of their abuser for precisely these reasons.
In short, the government laid an adequate foundation for
the admission of K.C.’s statements concerning the nature of
the abuse and the identity of her abuser. The district court
properly admitted the statements under Rule 803(4).
III
We turn next to Kootswatewa’s objection to the
admission of the officer’s testimony concerning the
statements K.C. made to him shortly after the abuse occurred.
The government offered this evidence in its rebuttal case,
after defense counsel attacked K.C.’s credibility while cross-
examining her. The district court admitted K.C.’s statements
under Rule 801(d)(1)(B)(i), which renders admissible a prior
UNITED STATES V. KOOTSWATEWA 13
statement that is consistent with the declarant’s in-court
testimony and is offered “to rebut an express or implied
charge that the declarant recently fabricated [her testimony]
or acted from a recent improper influence or motive in so
testifying.” Fed. R. Evid. 801(d)(1)(B)(i).
The district court properly exercised its discretion in
admitting K.C.’s statements to the officer. To explain why,
a bit of background information is necessary. K.C. testified
on direct examination that a man who lived in a red house (by
implication Kootswatewa) had touched her vagina with his
hand. During her opening statement, defense counsel
previewed for the jury how she planned to attack the
credibility of this anticipated testimony. Defense counsel
suggested that K.C. had fabricated her story of being sexually
abused by Kootswatewa because she wanted to avoid being
disciplined by her mother, who had previously warned K.C.
not to wander away from home and not to have any contact
with Kootswatewa:
The evidence will also show that [K.C.] had a
reason to make up a false story about Mr.
Kootswatewa at that moment, at that moment
when she ran into [the neighbor] outside the
trailer on that day. At that moment, K.C. had
just been caught very far from home, in
someone else’s trailer that she didn’t belong
in, with a man she had been told to stay away
from. Making up this story was a way to
escape getting in trouble.
During her cross-examination of K.C., defense counsel
returned to this theme and added another. She suggested
through her questions that K.C. had two separate motives for
14 UNITED STATES V. KOOTSWATEWA
fabricating her story: She wanted to avoid getting in trouble
with her mother, as alluded to during opening statement; and,
in addition, she was complying with her mother’s instructions
about what to say during her in-court testimony. As to the
second alleged motive, for example, defense counsel asked,
“your mom told you what to say today?”
Against this backdrop, K.C.’s prior statements to the
officer were admissible to rebut defense counsel’s suggestion
that K.C.’s in-court testimony had been tainted by a “recent
improper influence or motive”—namely, K.C.’s mother’s
alleged coaching. To be admissible under Rule
801(d)(1)(B)(i), K.C.’s statements must have been made
before this alleged improper influence or motive to fabricate
arose. See Tome v. United States, 513 U.S. 150, 156 (1995);
United States v. Chang Da Liu, 538 F.3d 1078, 1086 (9th Cir.
2008). That requirement was met here. K.C. spoke to the
officer shortly after the abuse in the trailer occurred. She did
not have an opportunity to speak with her mother before the
officer interviewed her, so the statements K.C. made to the
officer could not have been tainted by any coaching from her
mother.
Kootswatewa contends that the officer’s testimony should
have been excluded because defense counsel asserted two
different improper influences or motives, and K.C.’s prior
statements to the officer rebutted only one of them.
Kootswatewa correctly points out that K.C.’s alleged motive
to fabricate her story to avoid being disciplined by her mother
arose before K.C. spoke to the officer, and thus her
statements to the officer could not rebut that motive. But
Rule 801(d)(1)(B)(i) does not require that a prior statement
rebut all improper influences or motives suggested by defense
counsel. It is sufficient if the prior statement tends to rebut
UNITED STATES V. KOOTSWATEWA 15
one of them. See Gonzalez, 533 F.3d at 1063; see also United
States v. Londondio, 420 F.3d 777, 784–85 (8th Cir. 2005);
United States v. Wilson, 355 F.3d 358, 361 (5th Cir. 2003).
Here, as explained, K.C.’s prior statements to the officer
rebutted defense counsel’s suggestion that K.C.’s in-court
testimony was the product of her mother’s coaching.
Kootswatewa also argues that K.C.’s prior statements to
the officer were not “consistent” with her in-court testimony,
as required under Rule 801(d)(1)(B). See Chang Da Liu, 538
F.3d at 1086. Kootswatewa contends that this requirement
was not met because K.C.’s prior statements differed from
her testimony in court: K.C.’s statements to the officer
placed the abuse in the trailer, whereas K.C.’s confusing in-
court testimony (given in response to a series of leading
questions on cross-examination) suggested that the abuse
occurred at her mother’s house.
K.C.’s prior statements were consistent with her in-court
testimony with respect to the elements that were critical given
the nature of defense counsel’s attack. K.C.’s statements to
the officer were offered to rebut the charge that K.C. had
fabricated the entire episode of abuse by Kootswatewa.
K.C.’s statements to the officer tended to rebut that charge
because she told the officer shortly after the incident the same
thing she said in court: that the man who lived in the red
house had touched her vagina. To that extent, then, K.C.’s
statements to the officer were admissible as prior consistent
statements. To the extent K.C.’s prior statement as to the
location of the abuse differed from her trial testimony, any
error in admitting that statement was harmless. K.C.’s
neighbor and the nurse practitioner had already testified about
the statements K.C. made to them, and in both instances
K.C.’s statements established that the abuse occurred in the
16 UNITED STATES V. KOOTSWATEWA
trailer. Thus, the officer’s reference to where the abuse
occurred added nothing to the record that could have
prejudiced Kootswatewa.
IV
Finally, we address Kootswatewa’s objections to the
prosecutor’s closing argument. He contends that the
prosecutor committed misconduct in two respects.
First, Kootswatewa argues that it was improper for the
prosecutor to begin her closing argument by quoting or
paraphrasing the key statements K.C. made to the neighbor,
the nurse practitioner, and the law enforcement officer
describing the abuse. For example, the prosecutor stated, “He
tried to rape me. He took me into an abandoned trailer. . . .
Put fingers inside. The man in the red house.” While these
statements were phrased in the first person, it is not accurate
to say that the prosecutor spoke “in the voice of the victim,”
a practice we have condemned as improper. Drayden v.
White, 232 F.3d 704, 712 (9th Cir. 2000). The prosecutor
instead accurately recited the trial testimony recounting what
K.C. told others about the abuse and immediately disclosed
the source of the statements: “Those are the words that have
been used by K.C. when talking about what happened to her
on March 27th, 2014.” The prosecutor’s statements, in total,
filled less than six lines of the trial transcript. Briefly reciting
the trial testimony concerning what K.C. told others about the
offense—accurately and with proper attribution—did not
constitute misconduct.
Second, Kootswatewa argues that the prosecutor
misstated the record when she said that K.C. told the officer
that Kootswatewa had “lured” her into the trailer. K.C.
UNITED STATES V. KOOTSWATEWA 17
actually told the officer that Kootswatewa “took” her into the
trailer, so the prosecutor did indeed err. Nonetheless, this
misstatement of the record amounted to harmless error. See
United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.
2006). The evidence against Kootswatewa was compelling,
and none of the charges turned on whether he “lured” or
merely “took” K.C. into the abandoned trailer.
AFFIRMED.