UNITED STATES of America, Plaintiff-Appellee, v. Alexander LUKASHOV, Jr., aka Aleksandr Lukashov, Jr., Defendant Appellant.
No. 10-30348
United States Court of Appeals, Ninth Circuit
Filed Sept. 18, 2012
Argued and Submitted Feb. 6, 2012.
694 F.3d 1107
In sum, the state PCR court reasonably concluded Rogovich‘s appellate counsel did not render ineffective assistance. That court‘s adjudication of Rogovich‘s ineffective assistance claims was thus neither contrary to nor an unreasonable application of Strickland.
CONCLUSION
The district court‘s judgment in favor of the Respondent and denying Rogovich‘s federal habeas petition is AFFIRMED.
Kelly A. Zusman, United States Attorney‘s Office, Portland, OR, for the plaintiff-appellee.
Before: MARY M. SCHROEDER, ARTHUR L. ALARCÓN, and RONALD M. GOULD, Circuit Judges.
OPINION
GOULD, Circuit Judge:
Alexander Lukashov, Jr. appeals his jury conviction for aggravated sexual abuse in violation of
I
A
In February 2009, Alexander Lukashov, Jr., who worked as a long-haul truck driver in Portland, Oregon, was in a relationship with Cassedy Filer (“Cassedy“). Lukashov and Cassedy lived together with their two young children and Cassedy‘s son and daughter from a previous marriage, J.F. and T.F. Her son J.F. was then six years old, and her daughter T.F. was eight. Before Lukashov‘s departure on a long-haul trip to New York, Cassedy asked him to take J.F. to her relatives in Montana and to take T.F. along on the trip. Lukashov agreed, and he, J.F., and T.F. left Portland on February 5. Lukashov picked up a load in Washington, dropped J.F. off in Montana, and proceeded, with T.F. in his truck, to take his cargo to New York. He drove east to New York and delivered the Washington load there. He picked up another load in New York for delivery in Nevada. He then drove west with T.F. and delivered the New York load in Nevada. There he picked up still another load, destined for Portland. From Nevada, he drove west and north, and returned to Portland with T.F. on February 18.
From the evidence introduced at trial, we see that Lukashov was doing more than just driving his long-haul truck with
Once Lukashov and T.F. had returned to her home, after Lukashov had left the house, T.F. told her mother that Lukashov had sexually abused her on the trip. T.F. described the abuse and showed her mother bruises that she said Lukashov had given her. When, a few days after T.F.‘s return, the police came to the house to arrest Cassedy on an outstanding warrant, Cassedy reported the sexual abuse, and a police officer spoke to T.F. The police took a pair of T.F.‘s underwear and a pink blanket from the trip as potential evidence, and arrested Cassedy.
Cassedy‘s sister, Katie White, took T.F. to CARES Northwest (“CARES“) for an examination. CARES is a medical clinic that specializes in child abuse and is part of a multi-disciplinary child abuse team that is overseen by the district attorney‘s office. Dr. Linda Lorenz is a pediatrician who evaluates children for abuse and neglect at CARES. To evaluate a child, Lorenz does a medical examination and is assisted by an interviewer to gain more information pertinent to the child‘s diagnosis and treatment.
Together, Dr. Lorenz and Rachel Petke, a social worker at CARES, evaluated T.F. Lorenz conducted a physical examination of T.F. T.F.‘s genital exam and anal exam were normal, but Lorenz found “abnormal” bruises on the inside of one knee and on the side of T.F.‘s left hip. Lorenz asked T.F. why her aunt had brought her to CARES. T.F. said that she had gone on a trip with her “dad” and J.F. and that on the trip Lukashov had anally penetrated her and had tried to vaginally penetrate her but “couldn‘t.” T.F. described the abuse to Lorenz in the language of an eight-year-old, saying, for example, that Lukashov had put his “private part” in “the part where the poop comes out” and that he had tried to put it in her “crotch.” Lorenz also asked T.F. about the bruises on her body. T.F. said that she got the bruise on her knee from Lukashov after he made her take off her pants and underwear and get on her hands and knees, and that she got the bruise on her hip from Lukashov grabbing her hip and “going really fast.” T.F. added that there had been a bruise on her other hip that had faded.
After the physical examination, Petke interviewed T.F. The interview was videotaped, and Dr. Lorenz and a police officer observed it through a mirror. T.F. gave Petke a more detailed account of the sexual abuse than she gave Lorenz. T.F. said that the abuse happened after J.F. was dropped off in Montana and that it happened more than once, in Montana, North Dakota, and Nevada. T.F. said that the abuse took place in the semi-truck and in a hotel room in Nevada. T.F. told Petke, as she had Lorenz, that Lukashov had anally penetrated her and that he had tried unsuccessfully to vaginally penetrate her. She also said that Lukashov had made her perform oral sex on him and ejaculated in her mouth. T.F. gave age-appropriate descriptions, saying, for example, that Lukashov had tried to “shove it in [her] porcupine” and that when Lukashov put his “private part” in her mouth, “white stuff” that tasted “[l]ike foamy” had come out.
B
Lukashov was charged with aggravated sexual abuse in violation of
The district court ruled on several evidentiary matters before trial. Lukashov had moved to exclude T.F.‘s statements to Dr. Lorenz and Rachel Petke at CARES, and the district court denied this motion. Lukashov also had moved in limine to admit evidence of prior acts of Cassedy Filer to show that she had a pattern of making false allegations against her partner in a relationship. The district court ruled that Lukashov could offer opinion or reputation evidence of Cassedy‘s bad character for truthfulness but not evidence of specific prior acts. The district court held a Daubert hearing on the proposed testimony of Dr. Lorenz about characteristics of child sex abuse victims, and then held that Lorenz could testify about characteristics that she looks for in child sex abuse victims and that T.F.‘s physical examination and statements during the CARES evaluation were consistent with her allegations of sexual abuse.
The trial by jury lasted five days, and resulted in Lukashov‘s conviction. T.F. testified at trial, and the district court also admitted the video of her interview with Rachel Petke, giving the jury two opportunities to hear T.F.‘s version of events. Dr. Lorenz described T.F.‘s CARES evaluation, explained that child victims of sexual abuse can have normal genital and anal exams several days after the abuse, and testified that her physical findings and observations of T.F. were consistent with T.F.‘s allegations of sexual abuse. Forensic scientist Amy Wilson testified that she found spermatozoa on fabric cuttings from the interior crotch and interior seat areas of T.F.‘s underwear given to the police, and that the DNA profile of the spermatozoa matched Lukashov‘s DNA profile. No seminal fluid was found on the underwear, however, and no spermatozoa or seminal fluid was found on the pink blanket.
Lukashov testified in his own defense, and denied any abuse. An important part of Lukashov‘s theory of defense was his allegation that Cassedy had coached T.F. into making false allegations against him because Cassedy wanted to gain a tactical advantage in the pending breakup of their relationship. Lukashov testified that after returning from the trip with T.F., he told Cassedy more than once that their relationship was over, that Cassedy asked him to come back, but that in his mind, it was over.
On the third day of trial, at the close of the government‘s case-in-chief, Lukashov moved for a judgment of acquittal on the ground of improper venue. The parties disagreed about whether venue was a fact issue for the jury or a question of law for the court and whether venue existed under either or both paragraphs of the applicable venue statute,
Lukashov also moved for a judgment of acquittal for insufficient evidence of purpose on all three counts, and the district court denied this motion as well.
In addition to its burden to prove every element of each of the Counts against the Defendant beyond a reasonable doubt, as I am about to instruct you, the government must also prove by a preponderance of the evidence:
- that the offense began, continued, or was completed within the District of Oregon; and/or
- that the offense involved a form of transportation across state lines from, through, or into the District of Oregon; and/or
- that the offense involved transporting a person from, through, or into the District of Oregon.
The jury found Lukashov guilty on Count 1 and not guilty on Count 2; it did not reach a verdict on Count 3. The jury returned a special verdict finding that the government did not prove by a preponderance of the evidence that the offense charged in Count 1 (1) “began, continued, or was completed within the District of Oregon,” but that the government nevertheless proved venue by a preponderance of the evidence because the offense (2) “involved a form of transportation across state lines from, through, or into the District of Oregon” and (3) “involved transporting a person from, through, or into the District of Oregon.”2
Lukashov filed post-trial motions for judgment of acquittal based on insufficient evidence of purpose and improper venue. The district court denied both motions. On Lukashov‘s challenge to the sufficiency of the evidence, the district court applied the traditional standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and concluded that viewing the evidence in the light most favorable to the government, which had gained the jury‘s verdict, the “purpose” element of aggravated sexual abuse had been proved beyond a reasonable doubt.
With regard to venue, the district court first noted that venue in a criminal case had to be shown by a preponderance of the evidence. The district court then held that venue was proper on two alternative grounds, based respectively on the first and second paragraphs of
In hindsight, the Court believes its venue instructions to the jury did not give sufficient guidance about the alternate venue theories on which the government was proceeding after these venue issue[s] arose during trial. As to Count 1, the Court likely should have instructed the jury that if it found Defendant guilty and thereby found as fact that Defendant crossed a state line with
the intent to engage in the requisite sexual act with T.F. and that Defendant then knowingly engaged in that sexual act with T.F., then the offense was, as a matter of law, a “continuing offense” (under the first paragraph of § 3237(a) ) because the offense was completed in the District of Oregon when Defendant returned this eight-year old victim to her home. When the jury found beyond a reasonable doubt the facts necessary to convict the Defendant on Count 1, the Court now concludes there were not any additional facts for the jury to find as to venue under United States v. Casch, 448 F.3d at 1117 before the Court should have determined venue was established on this theory as a matter of law under United States v. Angotti, 105 F.3d 539, 541 (9th Cir.1997) and United States v. Childs, 5 F.3d 1328, 1331 (9th Cir.1993). In other words, when the government proved the substantive elements of Count 1 beyond a reasonable doubt, it necessarily proved by a preponderance of the evidence the factual predicate for a legal determination that Defendant‘s ongoing sexual abuse of T.F. was a continuing offense because it began sometime after T.F.‘s brother was left in Montana but before Defendant carried his commercial load to New York, continued specifically through Nevada during the trip back to Oregon, and ended when the Defendant completed the trip and returned this minor child who was in his physical custody and control to the District of Oregon. In addition, finding that venue in Oregon is proper under the first prong of§ 3237(a) is consistent with general policy considerations behind venue provisions; i.e., conducting the trial in a place convenient to the parties and the witnesses, all of whom in this cases were from Oregon when the child victim was unable to pinpoint geographically all of the places along the trip where Defendant abused her.Although the Court respects and understands the jury‘s finding on this venue issue, the Court now concludes the issue as to the first prong [of]
§ 3237(a) became a question of law when the jury found Defendant guilty of Count 1. Thus, to the extent the Court has the authority to determine venue was established under the first prong of§ 3237(a) as a matter of law at this post-verdict stage, it now does.
The district court sentenced Lukashov to 30 years in custody and entered judgment. Lukashov timely appealed. He raises issues on several evidentiary rulings, on the sufficiency of the evidence to convict him of aggravated sexual abuse, and on whether venue was proper in the District of Oregon. We review the issues in this order because the admissibility of evidence bears on the larger issue of the sufficiency of the evidence, and because the sufficiency of the evidence on Lukashov‘s sexual abuse of T.F. relates to the venue issue of whether that offense began, continued, or was completed in Oregon.
II
We first address the evidence issues. We review the district court‘s evidentiary rulings for abuse of discretion and its underlying factual determinations for clear error. See United States v. Shryock, 342 F.3d 948, 981 (9th Cir.2003).
Lukashov challenges the district court‘s admission of T.F.‘s videotaped interview with Rachel Petke, contending that T.F.‘s statements to Petke were not made for purposes of medical diagnosis or treatment and should have been excluded as inadmissible hearsay.
Before trial, the district court held an evidentiary hearing on the admissibility of
Lukashov argues that the purpose of T.F.‘s statements to Petke was to build a case against him rather than to obtain medical diagnosis or treatment. Lukashov relies upon, among other things, the interview‘s removal from the medical examination setting, the observation of the interview by a police officer, and T.F.‘s use of the word “evidence” during the interview.
We are not persuaded that the district court‘s finding on the purpose of T.F.‘s statements was clearly erroneous. See
The district court did not abuse its discretion in admitting Petke‘s interview of T.F. under
III
Lukashov contends that the district court erred in admitting Dr. Lorenz‘s testimony that her observations of T.F. and T.F.‘s statements were consistent with T.F.‘s allegations of sexual abuse.
The district court permitted Dr. Lorenz to testify about four general characteristics that she looks for in determining whether a child has been sexually abused: (1) spontaneous detail, (2) sexual knowledge, (3) sensory detail, and (4) age-appropriate language. In ruling this testimony admissible, the district court explained that Lorenz could “provide the jury with material that is beyond their general knowledge, specifically with respect to the idea that there are age-appropriate behaviors and language, age-appropriate capacities concerning knowledge around sex, that are significant to a pediatrician in her role.” The district court also let Lorenz give her opinion that T.F.‘s medical exam and statements during the evaluation were consistent with her allegations of sexual abuse. The district court limited its ruling by cautioning that Lorenz could “not be asked any question that call[ed] for her to comment on either explicitly or implicitly the inherent credibility of [T.F.] as a witness.”
Lukashov argues that Dr. Lorenz‘s testimony improperly bolstered T.F.‘s credibility. He cites United States v. Binder, in which we held that expert testimony that the child victim-witnesses could distinguish fantasy from reality and truth from falsehood improperly “bolster[ed] the children‘s story” and “usurp[ed] the jury‘s fact-finding function.” 769 F.2d at 602. The government argues that Lorenz‘s testimony was not improper because it was helpful to the jury and concerned general characteristics of child sex abuse victims rather than the credibility of T.F. in particular. See United States v. Hadley, 918 F.2d 848, 852-53 (9th Cir.1990) (holding that expert testimony about characteristics of “a class of victims generally” not improper bolstering (internal quotation marks and citation omitted)); see also United States v. Bighead, 128 F.3d 1329, 1330-31 (9th Cir.1997) (per curiam); United States v. Antone, 981 F.2d 1059, 1062 (9th Cir.1992); cf. Binder, 769 F.2d at 602 (holding testimony improper because “experts testified that these particular children in this particular case could be believed“). The government also urges us to follow the Eighth Circuit‘s approach in United States v. Whitted, where the court held that an expert permissibly “express[ed] his opinion that his medical findings were consistent with [the child]‘s claims of sexual abuse.” 11 F.3d 782, 786 (8th Cir.1993); see also United States v. Charley, 189 F.3d 1251, 1265-66 (10th Cir.1999) (concluding that district court did not abuse its discretion in allowing doctor to “summarize the medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim‘s allegations of sexual abuse” (quoting Whitted, 11 F.3d at 785)).
In our view, the government has the better of this argument. We conclude that the district court did not abuse its discretion in allowing Dr. Lorenz to testify about the characteristics that she looks for when assessing a child victim‘s story of sexual abuse, and to opine that her evaluation of T.F. was consistent with T.F.‘s allegations of sexual abuse. Lorenz‘s testimony was helpful to the jury because some jurors would not have a general understanding of an eight-year-old‘s sexual knowledge and vocabulary and the level of sensory detail to look for in a child‘s allegations of sexual abuse. See
IV
On another evidence ruling, Lukashov challenges the district court‘s admission of Katie White‘s testimony that T.F. had a truthful character.
Lukashov contends that White‘s opinion testimony on T.F.‘s truthful character was not admissible because T.F.‘s character for truthfulness had not been attacked. We disagree. Lukashov‘s defense stressed that T.F. was lying because her mother told her to lie, that she not only lied on the witness stand at trial, but had been lying from the beginning, to the police and to Dr. Lorenz and to Rachel Petke. Lukashov did not merely point out inconsistencies in T.F.‘s trial testimony. Rather, he focused his defense, from opening statement through closing argument, on calling T.F. a liar. As it appears to us, the defense argument carried “strong accusations of misconduct and bad character” of T.F., which the district court thought in fairness permitted evidence of her good character and truthfulness. See id. at 692 (quoting McCormick on Evidence); 1 McCormick on Evidence § 47 (6th ed.2009) (stating that the greater the number of inconsistencies brought out in cross-examination, “the stronger is the inference that by character the witness is a liar, not simply a witness who has told an isolated lie“). Though this evidence ruling presents a close question, we hold that the district court did not abuse its discretion when it responsively admitted White‘s testimony on T.F.‘s truthful character.3
V
Lukashov‘s final evidentiary contention is that the district court improperly excluded evidence of Cassedy Filer‘s alleged prior acts. Lukashov alleged that Cassedy made false allegations of assault against her ex-husband, Merlin Filer, and then threatened to take their children to force him to plead guilty, and that she tried to plant false memories in T.F. of Merlin trying to drown her in the bathtub and burn her with a cigarette. Lukashov sought to introduce evidence of these acts
The district court excluded this evidence under
VI
We next turn to Lukashov‘s challenge to the sufficiency of the evidence. In reviewing a challenge to the sufficiency of the evidence to support a verdict in a criminal case, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. This standard is highly deferential because our criminal justice system gives primacy to the role of the jury in determining guilt beyond a reasonable doubt after being correctly instructed on the governing law.
Lukashov contends that the evidence at trial was insufficient because it did not establish that he had the requisite purpose for conviction under
The district court instructed the jury that to convict Lukashov on Count 1, the government had to prove beyond a reasonable doubt that he “traveled across a state line with the intent to engage in a sexual act with T.F.,” and explained:
[T]he government need not prove that the Defendant traveled across a state line for the sole and exclusive purpose of engaging in a sexual act. A person may have different purposes or motives for travel and each may prompt in varying degrees the act of making the journey. For purposes of [this element], the government must prove beyond a reasonable doubt that a dominant, significant, or motivating purpose of Defendant‘s travel across a state line was to engage in a sexual act with T.F. In other words, the government must prove the sexual act was not merely incidental to the travel.
Viewed in the light most favorable to the government, the evidence showed that Lukashov engaged in abhorrent sexual acts with T.F. in three different states, Montana, North Dakota, and Nevada. A ra-
VII
We finally address Lukashov‘s challenge to venue. We review the district court‘s determination on venue de novo. United States v. Arango, 670 F.3d 988, 992 (9th Cir.2012).
Proper venue is not a mere technicality. Instead, a defendant in a criminal case has a constitutional right to be tried in a district where the crime was committed.
We have previously explained:
Our venue law grows out of important concerns that a criminal jury trial be held near the place where the crime was committed and where prosecution can conveniently proceed. “In criminal cases venue involves important considerations of policy, with deep historical roots, that are now expressed in a complicated interplay of constitutional provisions, statutes and rules.” The Supreme Court has, at various times, expounded on the importance of prosecuting cases near the criminal defendant‘s home. On other occasions, the Court has stressed the importance of a trial at the locus of the crime.
....
Determining where an offense was committed, however, has often been a sticky question. Many offenses, like complex conspiracies or transporting contraband, may continue through multiple venues. Congress has eased the burden of answering this question by providing [in
18 U.S.C. § 3237(a) ] that continuing offenses may be prosecuted where they are begun, continued, or completed[.]
Angotti, 105 F.3d at 541-42 (citations omitted).
On the other hand, the unusual circumstances of this case, where the district court first gave an instruction on venue and then, after the jury‘s determination of guilt beyond a reasonable doubt in substance, decided the venue question of when the crime was completed as a matter of law, require us to take a fresh look at the governing principles. We have found no prior precedent holding that the evidence in a case permitted the trial court, as the district court did here, to take the venue issue from the jury and determine it as a matter of law. However, we formulate the following rule to be applied: Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law. Precedent supports the idea that when a court has failed to give a venue instruction to the jury, that error will be viewed as harmless if the evidence viewed rationally by a jury could only support a conclusion that venue existed. E.g., United States v. Miller, 111 F.3d 747, 751-53 (10th Cir.1997); see also Casch, 448 F.3d at 1117-18; United States v. Massa, 686 F.2d 526, 531 (7th Cir.1982). It follows logically that, having given a venue instruction, as the district court did here, if the evidence could only be viewed by a rational jury as sustaining venue by a preponderance of the evidence, which the district court concluded was the case once the jury found the elements of
To decide whether venue is proper in a district, we “must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.” United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). “To determine the ‘nature of the crime,’ we look to the ‘essential conduct elements’ of the offense.” Pace, 314 F.3d at 349 (quoting Rodriguez-Moreno, 526 U.S. at 280). For continuing offenses,
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.
Under Rodriguez-Moreno and
Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, ... knowingly engages in a sexual act with another person who has not attained the age of 12 years, ... or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life.
The essential conduct elements are (1) crossing a state line, (2) with intent to engage in a sexual act with a child, and (3) engaging in or attempting to engage in a sexual act with a child. See Cryar, 232 F.3d at 1322. Given the continuing nature of these elements, the district court correctly held, and the parties do not dispute, that aggravated sexual abuse is a continuing offense for purposes of
We next “discern the location of the commission of the criminal acts.” Rodriguez-Moreno, 526 U.S. at 279. On this issue, the parties disagree. As we explained above, the district court held, notwithstanding the jury‘s finding that the offense in Count 1 did not begin, continue, or end in the District of Oregon, that venue was proper under the first paragraph of
Lukashov contends that we must accept the jury‘s finding that the offense of aggravated sexual abuse did not begin, continue, or end in the District of Oregon. He argues that venue was not proper under the first paragraph of
We have previously said that a continuing offense “does not terminate merely because all of the elements are met.” United States v. Lopez, 484 F.3d 1186, 1192 (9th Cir.2007) (en banc). It is committed “over the whole area through which force propelled by an offender operates.” United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 89 L.Ed. 236 (1944).
Whenever precisely Lukashov formed his intent to abuse T.F., crossed a state line with illicit intent to abuse her, and abused her, there is no question here about his having committed the offense during his abuse in Montana or North Dakota. But what is important to our analysis is that the continuing offense did not terminate there. See Lopez, 484 F.3d at 1192. Lukashov‘s serial sexual abuse of T.F. continued across the country to New York and back through Nevada to Oregon. There can be no doubt that T.F., an eight-year-old girl far from home in the custody of a man she called her “dad,” was in fear of continued abuse and under constant threat that the abuse would resume until
The district court correctly perceived that once the jury found beyond a reasonable doubt that Lukashov had sexually abused T.F. on the trip to New York and back to Portland, the government had “necessarily” proved venue by a preponderance of the evidence because the offense continued into and was completed in Oregon as a matter of law. No rational jury could have failed to so conclude.
We hold that venue was proper under the first paragraph of
AFFIRMED.
RONALD M. GOULD
UNITED STATES CIRCUIT JUDGE