United States v. Pablo, 2012 U.S. App. LEXIS 20629

Jonathan Pablo was convicted by a jury of rape, kidnapping, assault resulting in serious bodily injury, and carjacking on Indian reservation land; codefendant Isaac Gordo was convicted on similar counts.
DNA and serology analyses linked Pablo to DNA found on the victim and a condom; Snider testified as the DNA/serology expert, not the original analysts.
Pablo challenged the Confrontation Clause, arguing Snider’s testimony conveyed out-of-court statements from Dick and Boyd without cross-examination of those analysts.
Pablo also challenged alleged government and court interference that allegedly pressured defense witnesses to refrain from testifying, due to self-incrimination concerns.
Pablo contended that the district court erred by excluding certain evidence under Rule 412 (evidence of victim’s past sexual behavior and alleged advances by the victim toward co-defendant Isaac).
The panel reaffirmed affirmance, applying Williams v. Illinois to address Confrontation Clause issues and concluding no reversible error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation Clause testimony	Snider parroted Dick/Boyd reports, violating Crawford/Melendez-Diaz.	Rule 703 allows expert reliance on others’ reports; Williams limits on parrotting and Confrontation concerns vary.	No plain error; admission not reversible given the record and Williams framework.
Plain-error analysis applicability	Errors were plain and affected substantial rights.	Any error did not affect substantial rights; other testimony supported conviction.	Error did not affect substantial rights; no reversal on this basis.
Interference with defense witnesses	Prosecution and court coerced witnesses to avoid testifying due to self-incrimination.	There was improper interference depriving him of a defense.	No substantial interference; independent counsel and careful colloquy mitigated risk; defendants’ rights preserved.
Rule 412 evidence excluding prior sexual behavior	Exclusion of evidence about victim’s state of undress and sexual advances violated Rule 412 and the defense.	Evidence should have been admissible under Rule 412(b) to support consent or alternative theories.	No reversible error; district court properly exercised discretion under Rule 412.

Williams v. Illinois, 132 S. Ct. 2221 (2012) (addressed whether lab-report data are offered for truth or to aid evaluation of expert testimony)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic affidavits as testimonial statements under Confrontation Clause)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (forensic report admitted but held not conforming to confrontation requirements depending on record)
Crawford v. Washington, 541 U.S. 36 (2004) (foundation for confronting out-of-court testimonial statements)
Pursley, 577 F.3d 1204 (10th Cir. 2009) (definition of testimonial statement and admissibility standards)
Serrano, 406 F.3d 1208 (10th Cir. 2005) (prosecution must not coerce defense witnesses; independent counsel reduces risk)
Johnson v. United States, 587 F.3d 635 (10th Cir. 2009) (expert may rely on others’ notes; degree of parrotting matters)
United States v. Davis, 40 F.3d 1069 (10th Cir. 1994) (expert reliance on inadmissible data)
Rose, 587 F.3d 695 (5th Cir. 2009) (fact-specific plain-error analysis; ambiguity can foreclose reversal)