United States v. Christopher Preston

FILED
NOT FOR PUBLICATION
FEB 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10375
Plaintiff-Appellee, D.C. No.
4:13-cr-01851-JAS-JR-1
v.
CHRISTOPHER JAMES PRESTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted February 2, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Defendant Christopher James Preston appeals his convictions on two counts
of aggravated sexual abuse of a child, in violation of 18 U.S.C. § 2241(c). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. We reject Defendant’s claim that the government improperly vouched for
Timothy and Ms. Preston’s credibility. “Improper vouching consists of placing the
prestige of the government behind a witness through personal assurances of the
witness’s veracity, or suggesting that information not presented to the jury supports
the witness’s testimony.” United States v. Ruiz, 710 F.3d 1077, 1085 (9th Cir.
2013) (quotation marks and citation omitted). A prosecutor may ask an impeached
witness whether they are telling the truth. See, e.g., United States v. Dorsey, 677
F.3d 944, 953 (9th Cir. 2012) (holding that a prosecutor may refer to a plea
agreement’s “mandate to be truthful” if such references are “made in response to
an attack on the witness’s credibility because of his plea bargain”) (quoting United
States v. Monroe, 943 F.2d 1007, 1013–14 (9th Cir. 1991)).
The prosecutor did not improperly vouch during his closing argument. The
first statement—“Why do we think he’s credible”—is permissible because, viewed
in context, the prosecutor appears to be arguing why the jury should find Timothy
credible based on the evidence in the record and based upon inferences that can be
drawn from that evidence. See United States v. Alcantara-Castillo, 788 F.3d 1186,
1195 (9th Cir. 2015). The second statement—“I would submit to you he’s a very
credible witness”—is also permissible. See United States v. Necoechea, 986 F.2d
1273, 1279 (9th Cir. 1993); cf. United States v. Flores, 802 F.3d 1028, 1040 (9th
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Cir. 2015) (government improperly vouched for expert when prosecutor said, “I
submit I would hire” the expert over another expert).
2. Testimony that Ms. Preston called Defendant a “child molester” during an
argument was not improper character evidence. The evidence was relevant
“grooming” evidence. The statement was made by Ms. Preston to Defendant in
Timothy’s presence after she learned that Defendant showed Timothy an R-rated
movie about the pornography industry. As a result, Timothy asked Defendant
whether Ms. Preston knew about his and Defendant’s sexual relationship,
demonstrating that Timothy knew of the need to keep the relationship secret and to
protect Defendant.
The district court allowed Barry, Timothy’s older brother, to testify that
Defendant allowed him to drink alcohol, smoke cigarettes, and watch pornography.
The court also allowed Barry to testify that Defendant discussed lewd acts with
him. The district court found this evidence “inextricably intertwined” with
Timothy’s experiences and admissible to show intent. Assuming without deciding
that this was an abuse of discretion, any error was harmless. There is ample other
evidence, such Timothy’s testimony and other witnesses’ corroboration of that
testimony, supporting a determination of Defendant’s guilt.
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3. There was no Doyle v. Ohio, 426 U.S. 610 (1976), violation. After Agent
Dallacroce testified that Defendant invoked his right to counsel, the district court
timely sustained defense counsel’s objection, struck Agent Dallacroce’s answer,
admonished the jury to disregard the answer, and instructed the jury not to consider
the testimony. See Greer v. Miller, 483 U.S. 756, 765–66 (1987); cf. United States
v. Foster, 985 F.2d 466, 468 (9th Cir. 1993) (finding a Doyle error where the court
“overruled a timely objection, advised the defendant to answer the question and
admitted . . . testimony acknowledging [the defendant’s] post-arrest silence”), as
amended by 17 F.3d 1256 (9th Cir. 1994).
4. The district court did not plainly err by permitting Karen Blackwell to
provide expert testimony. First, Blackwell’s testimony was helpful to the jury
because it provided information about the general dynamics of sexual assault
situations. See United States v. Lukashov, 694 F.3d 1107, 1116–17 (9th Cir. 2012).
Second, the record indicates that Blackwell’s testimony was reliable. Blackwell
has specialized knowledge about child/adolescent abuse. She has a master’s
degree in social work, has been a forensic interviewer for the FBI for “over nine
years,” but has done “forensic interview[ing] for 18 years,” and has conducted
more than 3,500 forensic interviews. Based on her extensive and specialized
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knowledge about the process of victimization and the process of disclosure, the
district court correctly qualified her as an expert witness.
5. The government did not misstate the evidence during summation.
“Prosecutors have considerable leeway to strike hard blows based on the evidence
and all reasonable inferences from the evidence.” United States v. Macias, 789
F.3d 1011, 1023 (9th Cir. 2015) (quotation marks and citation omitted);
Necoechea, 986 F.2d at 1276 (explaining that prosecutors may argue in closing
that one side is lying if the argument is based on reasonable inferences). First, the
prosecutor fairly argued that Timothy did not seek to gain anything by disclosing
the abuse to his mother. As the prosecutor noted, Timothy’s disclosure came
during the time he was being prosecuted for his own crimes. But Timothy neither
disclosed the abuse to any law enforcement figure before his mother contacted the
police, nor wanted the abuse disclosed. Second, it was fair to contend that
Timothy did not “present” as someone who wanted to destroy Defendant. Much of
Timothy’s testimony was focused on how much he enjoyed his time with
Defendant.
6. The district court did not violate Defendant’s Fifth and Sixth Amendment
rights by limiting defense counsel’s closing argument. A court may instruct
counsel not to inject his personal opinion into an argument. See United States v.
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Spillone, 879 F.2d 514, 518 (9th Cir. 1989); see also United States v. Young, 470
U.S. 1, 8–9, 9 n.7 (1985).
Defense counsel expressed his opinion about the truth of Timothy’s claims.
This was improper and the district court did not abuse its discretion by prohibiting
counsel from expressing his opinions on the veracity of Timothy’s claims. This
prohibition was not unconstitutional as it did not deprive defense counsel from
arguing his theory of the defense or from attacking the credibility and believability
of Timothy and the other witnesses. See Conde v. Henry, 198 F.3d 734, 739 (9th
Cir. 1999). Accordingly, the district court’s ruling was proper.
7. Because we have identified no errors, cumulative error does not justify
reversal. See United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).
AFFIRMED.
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