United States v. Christopher Preston
2017 U.S. App. LEXIS 20301
| 9th Cir. | 2017Background
- In 1998 Timothy (Tim) Rosenberg, age 10, stayed overnight at Christopher Preston’s home multiple times; in 2012 Rosenberg alleged Preston sexually abused him in 1998 and then provided detailed statements and a therapy journal.
- Preston was indicted on two counts of aggravated sexual abuse and two counts of abusive sexual contact; after a 2015 jury trial he was convicted on two aggravated-sexual-abuse counts and sentenced to 162 months.
- The prosecution’s case rested almost entirely on Rosenberg’s testimony; Preston denied the allegations in interviews with law enforcement (one recorded interview, one unrecorded with a polygraph).
- At trial the government elicited testimony from Rosenberg’s therapist (Gail Bussart), Rosenberg’s brother (Barry), an FBI agent (Dellacroce), and Preston’s ex-wife (Andrea) who described a 2003 incident in which Preston masturbated to a photo of an 8-year-old stepson.
- Preston appealed, arguing multiple evidentiary errors and prosecutorial misconduct that, singly or cumulatively, denied him a fair trial. The Ninth Circuit reversed and remanded for a new trial based on cumulative error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper witness testimony bolstering victim credibility (therapist, brother, FBI agent) | Bussart, Barry, and Dellacroce improperly vouched or opined that Rosenberg was truthful or that Preston’s denial was not credible | Government says some testimony was permissible (e.g., impeachment, interrogation technique) and significance was limited; court had given curative instruction | Court held the district court abused its discretion by admitting impermissible opinion/vouching testimony (Bussart’s statements, Barry’s juror-answer, Dellacroce’s statement) and treated these as part of cumulative error |
| Lay/expert opinion by therapist on general truthfulness and victim behavior | Bussart gave improper lay opinions about sexual-abuse victims generally and that allegations she’d treated were "normally true" | Government had been denied expert designation for Bussart and argued limited testimony was allowed; it attempted to confine her testimony to treatment observations | Court found Bussart’s generalizations and opinions on victim behavior were inadmissible (not proper lay or expert opinion) and constituted abuse of discretion |
| Admission of ex-wife’s testimony about 2003 masturbation (Rule 404(b)/403) | Testimony was unfair propensity evidence and not sufficiently similar to charged conduct to prove intent; probative value slight and unfairly prejudicial | Government admitted it under Rule 404(b) to prove intent, arguing similarity by victim age and remoteness not excessive | Court held the 2003 masturbation/fantasy evidence was improperly admitted: the act was insufficiently similar to charged abuse and, given intent was not disputed, its prejudicial impact outweighed probative value |
| Prosecutorial misconduct in summation: comments on failure to testify, vouching, misstatement of evidence | Prosecutor impermissibly called attention to lack of contradictory testimony (inviting inference Preston didn’t testify), repeatedly vouched for Rosenberg, and created a false binary about the evidence | Government argued its remarks were argument about the evidence and the jury was instructed attorneys’ arguments are not evidence; some remarks were responsive to defense | Court found plain error: prosecutor’s statements improperly commented on defendant’s silence, vouched for witness veracity multiple times, and misstated the nature of defense evidence; these contributed to cumulative prejudice |
| Cumulative-error prejudice | Combined effect of the improper credibility-boosting testimony, the 404(b) evidence, and prosecutorial misconduct infected the central issue (whether jurors should believe Rosenberg) and rendered trial fundamentally unfair | Government argued errors were harmless or isolated and case evidence supported verdict | Court held the errors amplified one another around the single contested issue (victim credibility), and because the government’s case relied almost entirely on Rosenberg, the cumulative errors prejudiced Preston and required reversal and remand for a new trial |
Key Cases Cited
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (establishing judicial role regarding law and courts)
- Allis v. United States, 155 U.S. 117 (jury’s province to determine witness credibility)
- United States v. Bonds, 784 F.3d 582 (deference to jury credibility determinations)
- United States v. Frederick, 78 F.3d 1370 (cumulative-error review framework)
- Parle v. Runnels, 505 F.3d 922 (multiple errors can cumulatively violate due process)
- Ybarra v. McDaniel, 656 F.3d 984 (errors that amplify each other assessed together)
- United States v. Weatherspoon, 410 F.3d 1142 (prosecutorial vouching impermissible)
- Lincoln v. Sunn, 807 F.2d 805 (comments that effectively point to defendant’s failure to testify are prohibited)
- United States v. Wiggan, 700 F.3d 1204 (Rule 403: slight probative value with even modest unfair prejudice requires exclusion)
- United States v. Hadley, 918 F.2d 848 (404(b) intent showing requires similarity of other act to charged offense)