*1 policies ered the insurance at issue in America, case, UNITED duty the insurers do not have a STATES Plaintiff-Appellee, indemnify
to defend or O’Hara. Additional Motions IV. CERNO, Defendant-Appellant. Steve Valley Forge and Zurich also No. 07-2136. petition permission appeal filed a for declaring Valley district court’s order Appeals, United States Court of Forge and Zurich are entitled to reim Tenth Circuit. they bursement for defense costs have ex June 2008.
pended defending O’Hara. We dismiss interlocutory appeal improvidently as granted prevailing parties gener
ally lack standing appeal a district court
order. See Nicodemus v. Pac. Union (10th Cir.2003).
Corp., 318 F.3d pursue any entitled insurers are
remaining against claims O’Hara on rem
and.10 deny
We also motion O’Hara’s
certify Supreme to the Colorado Court the
question Valley of whether Zu Forge and recoup
rich are entitled to costs. This
court “generally certify questions will not
to a supreme request state court when the
ing party only seeks certification after hav
ing received an decision from adverse Midpoint Develop
district court.” In re
ment, (10th LLC, Cir
.2006). Finally, Lloyd’s grant we motion to
correct its answer brief.
V. Conclusion above,
For the AF- reasons stated we
FIRM. The case is remanded the dis-
trict court for proceedings further consis- opinion.
tent with this interlocutory ap- peal, Because we filing dismiss the no fee is due. *2 Padilla, Federal
Alonzo Assistant J. Defender, of the Federal Office Public NM, Defender, Albuquerque, for Public Defendant-Appellant. Williams, Attor- Assistant U.S. David N. Attorney, States ney, Office of the United NM, Plaintiff-Appel- for the Albuquerque, lee. LUCERO, HOLLOWAY, and
Before McCCONNELL, Judges. Circuit LUCERO, Judge. Circuit jury conviction appeals his Steve Cerno sexual abuse aggravated on five counts 2241(a) § and his of 18 U.S.C. violation imprisonment. resulting of life sentence conviction, challenges the As to his impeachment evidence admission of certain cross-examination, during introduced counts of aggravated sexual contact al- arguing leged was inad- that Cerno used force to cause missable under Fеderal Rules of Evidence penis victim touch his and to bite her *3 404(b). respect pleaded and With his sen- breast. not guilty Cerno to all tence, that he maintains the district court seven counts. erroneously a applied United States Sen- limine, pretrial In a motion in Cerno (“Guidelines”) tencing Guidelines enhance- prevent asked the court government appropriately
ment and failed to consider from introducing certain evidence at trial. militating against several factors a life sen- First, sought porno- to exclude four tence. graphic videotapes police that found in the Second, closet of his bedroom.
We conclude that the district court did he asked in the court to bar admitting relating not abuse its discretion to an which, incident in upon returning challenged evidence under Rule and home wake, from a tribal the victim and other prop- evidence was admitted for 404(b). family members found purpose Upon er under Rule re- him out on a sentence, however, penis couch with his exposed porno- view of as a Cerno’s we graphic videotape played hold that pro- the district court committed the television incident”). (“exposure by argued cedural error Cerno that refusing consider the both the videotapes any testimony relаtive and amount force Cerno used exposure about the committing charged incident were inadmis- offenses. Such sible under Federal goes consideration to the heart Rules of Evidence 401 of 18 3553(a)’s § and 403 U.S.C. mandate that a because the relevance of this sen- evi- dence, any, if tencing substantially outweighed court consider the nature and cir- danger prejudice. cumstances of the offense of unfair conduct when The government responded an fashioning appropriate, individualized the evidence error relevant because it explained why sentence. This was not harmless thought victim requires “disgusting” and reversal. Cerno was We therefore af- and conviction, support firm thus tended to but reverse his her claim that she did not consent physical sentence and remand to the district court to his advances on Relying with her. on Rule instructions to vacate and resentence. the court con- cluded that the evidence was inflammatory value, and had limited probative and thus granted Cerno’s motion limine. A trial, At prosecution introduced the 27, 2005, July grand On a federal witnesses, of four including the Cerno, victim, indicted an enrolled member of the her stepmother, father and and the Tribe, Acoma Pueblo Indian on five counts investigating agent from the Federal Bu- of aggravated (“FBI”). sexual abuse Indian reau Investigation The vic- Country, in violation of 18 U.S.C. tim’s father and stepmother gen- testified 2241(a) 2246(2)(B), §§ erally two counts they about how became aware of the of aggravated sexual contact in Indian victim’s allegations, and discussed how the 2244(a)(1) Country, §§ in violation of and victim moved in with them on the reserva- 2246(3). aggravated sexual abuse tion when she was following the death charged using counts Cerno with They force on of her mother. stated that once the orally digitally three occasions to family vio- living determined that the situation (“victim”). 16-year-old late his niece Two with the working victim was not Cerno, she allegations against ing allow these volunteered to grandmother victim’s relatives. home, moved in with these which was stay in her victim to part of the reserva- separate located on cross-examination, Cerno’s coun- During the victim’s also lived with tion. Cerno she was the victim whether sel asked mother, at time. grandmother, hurt her. The might scared stated stepmother father The victim’s objected, asking the court government signs of abuse they never witnessed evidentiary ruling with re- reconsider its only allegations aware of the and became incident and the spect instances reported certain after the victim argued It videotapes. pornographic family members. *4 to other abuse that the would demonstrate the evidence because she had seen victim feared Cerno about her inves- agent An FBI testified penis exposed, his asleep him with allegations. With into the abuse tigation a form of vio- “pornography is bit the charge that Cerno respect to 2 Although the court admonished breast, pho- lence.” agent presented victim’s breast, “getting pret- that he was she Cerno’s counsel on the but of a scar tograph edge” questions, with his ty close to the had not conduct- that the Bureau conceded pretrial reconsider its the court declined to the bite comparison between ed a forensic ruling. teeth.1 mark and Cerno’s with its proceeded then The defense specifically testified
Only the victim During di- himself. only her witness: Cerno she arrived at the abuse. When about an examination, being admitted to rect July in Cerno house grandmother’s drinking eight six to beers alcoholic and to the victim to to allow vacated his bedroom the victim day during period when in that bedroom use it. It was mother. He stated him and his lived with respect to occurred. With abuse any blackouts when abuse, that he did not have she aggravated sexual charges of he “would remember he drank because specific oсca- jury about several told the done” at and what had [he] where [he] had abused her during which Cerno sions drinking. He con- from up when he woke orally violating her. She by digitally and ceded, however, occasionally that he her had once bit that Cerno also asserted further drinking. from Cerno passed out touching her into and coerced breast permitted to that he was testified Although she testified that Cerno penis. home, inside his mother’s other- drink threaten her or physically did not outside “just [in instead sit her, her he would stated that he forced hit she wise and listen to and drink beer family truck] her and when he assaulted legs open somebody flick- wait until the radio and away legs close her to move she tried [him], telling it’s at lights [him] ered the told the the abuse. She also prevent According to bed.”3 go go time to the sexu- eventually reported jury that she lazy “in a Cerno, put him drinking she other relatives while al abuse to two mood,” to do was “sit and all he wanted mak- in their home. On visiting them dent, consensual depicted anything other than whether on cross-examination 1. When asked victim’s bite wound on the between adults. he inflicted the sex acts breast, apparently demonstrated Cerno missing teeth. several of his that he was occasion, that, he would did state 3.Cerno alcohol with into his mother’s house sneak reсord that no evidence in the 2. There is drinking. while and watch television including playing on the videotapes, the one exposure inci- night on the television just prevent alone.” “If him violating [be left] [he] down and from her. Al- well, passed out.” though govern- [he] the court then asked the might ment whether the evidence have committing the al- Cerno also denied impeach some value to Cerno’s direct testi- abuse, claiming that victim leged had mony, ultimately it reaffirmed its earlier testimony. perjured explaining her disputed decision to exclude the evidence. falsely why might the victim have accused him, that she wanted to es- he theorized cross-examination, On Cerno was asked grandmother’s of her cape the restrictions heavy drinking impaired whether his permissive and move with more home judgment. responded did relatives, the alleged gave and that abuse not, stating eight day all “[s]ix cans emphasized her an to do so. He excuse long going my isn’t to impair judgment to in fact that the victim did move with I doing.” where don’t know what I’m He shortly reported after she those relatives however, acknowledged, later that his alco- that, posited the abuse. He also as an negative impact family holism had a on his alcoholic, easy target he was an for the “if kept way life and said that I’d оn the allegations essentially because he was *5 going, yes, my was it [impaired would have “nobody.” Finally, questioned whether judgment] eventually.” He further admit- opportunity have had the he could com- although that drinking ted his habit had abuse, noting mit the that someone else yet impaired judgment, his it get- was “usually always” was the house when he ting doing close to so. home, including and the victim were at his At completion the of Cerno’s cross-ex- mother or one of his other nieces. amination, government again the asked to testimony, gov- After Cerno’s direct the approach hearing any the bench. Prior to motion ernment renewed its to admit the argument side, from counsel for either the argued It excluded evidence. that the evi- court that it “significant” stated now saw dence contradicted Cerno’s assertion that probative value in impeaching Cerno allegations the victim contrived the questioning him exposure about the inci- against him because he “a abuse was dent. It granted govern- therefore the plausible drunk” therefore a scape- request, ment’s explaining govern- goat. initially The court denied gov- the inquire ment could into the incident motion, but then ernment’s ordered the impeach Cerno’s statements that “he was bench, parties asking to return to the completely in control of his senses” when clarify government argument. its In he drank and that “he didn’t judg- lose his relevant, that the evidence asserting was a drinking. ment” as result of his Accord- government again claimed it was mate- court, ing to the it “clear” that was Cerno rial to the element of force and that Cerno lost judgment night his on the of the expo- testimony probative had made the of that sure questioning incident and that on the during element his cross-examination of appropriate impeach- issue was therefore questioned the victim when he her about ment material. her fear of Cerno. Because evidence prosecutor exposure provided questioned incident then basis for belief that Cerno about recollection “repul- victim’s was of the incident and sive, disgusting, disgraceful,” thought whether he judgment [and] was im- government paired also claimed was relevant to night question.4 Their allegations the victim’s that she attempted exchange follows: request limiting regarding proper Cerno did not instruction from the court use of Q: you’ve [the victim] And learned Cerno, here you testified Q: Mr. people came back and two other point drinking had reached your you passed a wake and saw almost from judgment was your where out, watch- your penis exposed, yet hаd not with impaired, but becoming movie? ing pornographic impaired, correct? become Yes. A: A: Yes. you testified that you have also
Q: And agree with me? Q: you And would not point to the never drank have your judg- agree You wouldn’t and didn’t passed out you where impaired? ment was doing. you’d what been remember I No, watching I was it. A: that also correct? Is it. watching remember not black-outs. A: but your Q: Okay. you And indicated closing argument, always not judgment were senses of respect with highlighted Cerno’s judg- Your senses impaired? incident, arguing Cer- by your impaired ment weren’t im- “by definition” no’s drinking? urged further that Cerno’s paired. He impaired some- My judgment A: the event demonstrated testimony about times, physically. but stating dishonest that he had been opportunity have had an he could not point recall a in time Q: Okay. you Do always there was abuse the victim because July time frame of between *6 when both Cerno and someone around day the 31 st of August of 2004 and were at home. you at victim of when were April you house and had your mother’s guilty a of The returned verdict you drinking, passed been sexual abuse aggravated the five counts of watching a your penis exposed, with two counts of sexual guilty and not on the movie? pornographic moved for contact. Cerno thereafter A: Yes. Rule acquittal under Federal judgment of me, agree with wouldn’t Q: You would Alternatively, of Criminal Procedure point your judg- that at that you, argued that trial. Cerno sought a new very much and had become ment finding of support did not the evidence terribly impaired? objection to the guilt, and he renewed A: No. the ex- testimony regarding admission of judgment? Q: protested That was bad incident. He posure his abili- substantially prejudiced evidence home, I watched it one was at so A: No response, trial. to receive a fair ty out. testimony was government argued penis exposed? Q: your With tes- impeach Cerno’s properly admitted expect anybody home. A: Yes. didn’t timony regarding his exercise Everybody supposed was not drinking. while night. home that come they in fact did Q: You’ve learned denying Cer- opinion In a memorandum come home? motion, its decision court clarified no’s expo- to raise to allow the A: Yes. evidence, give the court did not one. testimony this as during government’s sure incident Relevant to appeal, he contended that application cross-examination of Cerno: of the five-level enhancement 4B1.5(b)(l) § under was in error because testimony impeaches The at issue De- the offense of conviction was not a “cov- that drinking fendant’s claims did not ered sex crime” within meaning of that impair judgment and that he knew guideline as the victim years was over 16 doing what he was when he drank. The age at the time of the abuse. He also impeaches also Defendant’s asked the grant court to a variance from statements that he would sit down and range recommended because a lesser anything drinking. not do when The sentence satisfy would the sentencing challenged testimony indicates that De- 3553(a). goals § of 18 U.S.C. urged fendant, drinking, when did engage the court to consider mitigat- a number of nature, contrary activities of a sexual factors, ing including that the evidence testimony represented. what his presented at trial showed that he had used Court therefore concluded that the Rule only minimal force against the victim. balancing weighed in favor of admit- ting the evidence because the exposure sentencing, At rejected the district court significant had probative im- each arguments of Cerno’s adopted peachment value that was not out- the recommendations of the PSR. As to weighed by potential its preju- for unfair 4B1.5(b)(l) enhancement, § the court dice. concluded that the commentary Guidelines anyone defined a minor as age under the
B and that the enhancement was there- proceeded The case then to sentenсing. properly fore applied. Addressing the Investigation Report propriety Presentence aof variance from the Guide- (“PSR”) lines, recommended a base offense level the court declined to consider the of 30 for each of the five counts of amount convic- of force used to commit the crime. 2A3.1(a). See U.S.S.G. § tion. that, The court explained The PSR as a matter of law, calculated total offense level of permitted 46 after was “not compar- to use a *7 (1) adjustments: the following a analysis say, well, four-level ative to this is not as increase because the great offense of conviction a many force as other sex abuse proscribed involved conduct by 18 cases It U.S.C. include.” then concluded that the 2241(a), § see (2) § 2A3.1(b)(l); proffered U.S.S.G. a other mitigators did not merit a sentence, two-level increase because the victim was lower stating: “I struggled to care, custody, supervisory the or something control find that mitigating is that I of the occurred, defendant when the abuse could use to reduce sentencing the level. (3) see 2A3.1(b)(3)(A); § a in- didn’t anything five-level find justify would a crease under the multiple-count adjust- reduction in the term.” The court im- (4) ment, 3D1.4; § posed see a five-level sentence of life imprisonment, and increase bеcause the timely appeal offense involved a ju- followed. We have pattern against minor, of sexual abuse § risdiction under 28 U.S.C. 1291. 4B1.5(b)(l). see § With Cerno’s total of- II
fense history level of 46 and criminal cate- I, gory of the PSR recommended Guide- begin by considering We Cerno’s eviden- imprisonment. lines sentence of life tiary challenge, based on Federal Rules of objections 404(b). Cerno filed a number of to Evidence 403 and Cerno contends the PSR’s sentencing recommendations. his conviction must be reversed be- l improperly allowed the court cause district him regarding question the relevancy. first the issue of We address 403, Invoking Rule exposure incident. the exposure The district ruled that court prosecutor’s question- argues he incident had relevance because it some testimony his trial ing impeach did not impeached regarding Cerno’s value. The de- probative therefore lacked had on drinking judg- the effect that his if that even the testi- fendant claims also trial, denying In a new ment. its order relevant, any probative value mony were also the evidence im- concluded by risk substantially outweighed peached Cerno’s assertions he knew Finally, argues unfair he prejudice. he drank doing what he was when and that of the evidence violated admission anything would do sit and not when 404(b) it allowed Rule drinking. only a court need iden- Because character evidence. improper consider its tify legitimate ruling, one basis for we
begin analysis end—our with the —and justification by first cited the district court. A Abel, 45, 56, See United U.S. States generally is admissi- Relevant evidence (1984) L.Ed.2d 450 105 S.Ct. 402. Under Rule ble. Fed.R.Evid. (“[Tjhere is pro- no rule of evidence which however, may a district court exclude rele- admissible for one vides probative vant evidence if its value “is purpose pur- and inadmissible for another by the substantially outweighed danger inadmissible; pose thereby rendered issues, of the prejudice, unfair confusion or case.”). quite contrary is the jury....” Fed.R.Evid. 403. misleading that he on direct was an Cerno admitted prop- whether evidence is determining alcoholic, probably that he and testified erly under Rule we consider admitted eight day. beers a drank between six (2) (1) relevant, evidence was whether the cross-examination, he denied that On his potential unfairly whether it had the drinking significantly habit affected his (3) defendant, and whether prejudice judgment. later conceded that his He substantially out- probative its value drinking problem negative impact had a unfair weighed danger prejudice. life, likely family that it would have his Fed.R.Evid. 401 & 403. See if he impaired continued He also admitted down same road. trial, the district court conclud At getting that his alcoholism was close incident ed that was relevant It impairing judgment. was after this credibility impeached because it *8 final district al- statement that the court statements, including several of his earlier questions ask re- lowed to his impair judgment. did not drinking incident. garding exposure Although question a close and we this is background, we may Against to a different this factual well have come conclu ourselves, view of assess whether the incident tended to sion our own the issue is testimony. impeach Cerno’s earlier Gen- applicable not relevant under the standard Instead, erally is the dis- speaking, impeachment we must ask of review. whether veracity, crediting such “as its un of a witness’ the district court abused discretion by in a lie or allowing impeachment, by catching Rule the witness der 403 1234, witness demonstrating 244 has been Espinoza, United States v. F.3d (10th Cir.2001), say convicted of a criminal offense.” Black’s 1239 and we cannot ed.2004) (8th (defin- Dictionary Law that it 768 did so. 934
ing impeachment).
Impeachment can be
conclusion tends
indirectly
undermine
in a
accomplished
ways,
number of
in
testimony
his
that his alcoholism had not
contradiction, which
cluding
occurs when yet reached
point
where it affected his
opposing party
an
endeavors to show judgment. See United States v. Rack
that a fact which the
witness has tes
straw,
(10th Cir.1993)
1476,
7 F.3d
tified is not true. See United States v.
(“The defendant who testifies has chosen
Crockett,
(10th
435 F.3d
Cir.
credibility....
make an issue of his
2006). Undoubtedly,
the contested evi government, accordingly,
right
has a
exposure
dence was relevant
if the
inci
challenge the
story
defendant’s
on cross-
dent tended to show
Cerno was not
... may impeach
examination [and]
truthful when he stated that drinking did
by developing
defendant
inconsistencies
impair
judgment.
not
his
See United
Lara,
testimony.”);
his
United States v.
Kozinski,
(7th
16 F.3d
States
(10th
Cir.1992) (af
996-97
Cir.1994) (“Impeachment by contradiction
firming admission
impeachment
testimo
impeachment
is a valid method of
and ny
necessary
where it was
to refute the
simply
presenting
involves
evidence that misleading picture that
painted
the witness
part or all of a
testimony
witness’
is in
611(a)-
jury);
to the
see also Fed.R.Evid.
omitted)).
correct.” (quotation
(b). Mitigating the relevance of the inci
matter,
As we view the
the evidence was
dent is the fact that Cerno was careful to
relevant
veracity.
to Cerno’s
The jury
explain that
drinking
his
had some effect
could
testimony
behavior,
have inferred from the
on his
it disrupted
family
as
his
during
Cerno’s behavior
the incident
life
pass
and led him to
even while
poor judgment
showed
generally
because he had al-
insisting that it did not affect his
аsleep
Thus,
lowed himself to fall
in a
judgment.
common
although
agree
we
with
area
compromised
of the house while in a
the district court that
the evidence had
Although
undisputed
state.
it was
some
impeachment by
relevance as
contra
diction,
family
believed that his
would
go
be
we cannot
agree
so far as to
gone
night,
for the entire
his failure
“significant”
that it had
impeachment val
they
consider that
might
early
return
ue
directly
or
“fi[ew]
the face” of Cer-
could show that
statements,
was in-
previous
no’s
as the district
impaired
deed
by
drinking.
Such a
court concluded.5
dissent,
According
any impeachment
to the
explained,
could have inferred from
exposure
reference to the
incident
"was
the offered
fully
that Cerno was not
forthcoming
relevant at all ...
[b]ecause
when he
drinking
testified that
probative
impair
had
judgment.
no
value....” Dissent at
did not
1-2.
But the threshold for relevance under the
The dissent’s more fundamental concern is
high
Federal Rules of Evidence is not a
one.
incident did not
party
only
A
proffered
need
show
directly
any
contradict
of Cerno's careful
“any tendency
statements,
evidence has
to make the exis-
impermissible
it was
to use the
any
consequence
tence of
Often,
that is of
incident as
evidence.
fact
probable
determination
the action more
impeachment by
or
contradiction is a matter of
*9
probable
See,
Lara,
less
than it would be without
contrasting
the
e.g.,
black with white.
(emphasis
evidence." Fed.R.Evid. 401
add-
(upholding
935 by questioning re- peachment of witness 2 alle- lated to “serious and unsubstantiated whether the consider We also impropriety”); of sexual United gations unfairly prejudice Cerno. likely to 393, 408 Devery, F.Supp. 935 States v. it had such no doubt have We (“Cross-examination (S.D.N.Y.1996) con- potential. and acts of sexual cerning immoral acts if unfairly prejudicial “Evidence by excluded may properly be perversion likely more makes a conviction it they are not judge trial who determines response the an emotional provokes veracity.”); Fed. the witness’s probative of adversely affect tends to jury or otherwise 611(a)(3) (providing trial court R.Evid. toward the defendant jury’s the attitude “protect witnesses from with discretion to judgment as to wholly apart embarrassment”). from its short, In the ... undue charged.” of the crime innocence guilt or affect the potential had the evidence 648, Leonard, 439 F.3d v. States United an issue Cerno on jury’s attitude toward Cir.2006) (10th omitted); (quotation 652 un- guilt, unrelated to his thus advisory 403 commit also Fed.R.Evid. see But this does not doubtedly prejudicial. unfairly prejudicial evi (defining tee’s note his evi- necessarily the defendant over get tendency having “an undue dence as dentiary hurdle. basis, improper on an suggest decision necessarily, an though not emo 3
commonly, one”). trial, Prior to the district tional to consider inquiry requires next us Our exposure the incident court found its dis- the district court abused whether di because “it could prejudicial be would probative the concluding cretion away attention from jury’s vert testimony was of the value for the responsibility question [Cerno’s] by the risk of substantially outweighed improper question charged to crimes Rule 403’s bal- Under prejudice. unfair agree. bad character.” We of [Cernо’s] test, that the risk enough it is not ancing than the greater be prejudice of unfair jury to hear details By allowing the evidence; the dan- of the incident, probative risk value the court created a about substantially must ger prejudice of that improper- would be jury’s decision value. probative outweigh the evidence’s for Cer- by emotional disdain ly affected 1204, Tan, v. States See United pornography toward proclivity no’s Peters, (10th Cir.2001); 978 1212 SEC in unsa- engaged that Cerno the inference Cir.1992). (10th engag- 1171 Because F.2d activity while drunk. vory sexual balancing, “give we requisite in the ing a sex underlying charges involved proba- maximum reasonable evidence its any not hear other and the did crime reasonable minimum tive force and its behav- regarding Cerno’s sexual evidence Equifax Deters v. value.” tempted prejudicial ior, jury may also have been Sens., Inc., F.3d incident as evi- Credit rely on Info. Cir.2000). (10th district Because the crimes guilt for dence of Cerno’s during seats judges have front-row McCarty, 82 court States v. charged. United Cf. Cir.1996) ruling (10th experience trial and extensive (holding F.3d issues, affords the our review evidentiary im- properly court disallowed the trial impaired question of Cerno’s disputed im- ficient as determining whether parse in did not err in district court pursued. At a mini- peachment be should was relevant. mum, determining that the evidence was suf- potential for contradiction *10 936 engaged
district court “considerable discretion Mr. Cerno in sexual activities while drunk.” performing balancing the Rule 403 test.” Because Cerno did not ob Tan, ject at 1211. to the introduction of the disputed 254 F.3d evidence on this basis before the district Under this deferential standard of re- court, we appellate challenge review his view, say we cannot that the district court only plain for error.7 United States v. in allowing gov- abused its discretion 993, Mendoza-Salgado, 964 F.2d questioning. reaching ernment’s line of (10th Cir.1992); see also Fed.R.Evid. conclusion, this we do not discount the 103(a)(1) (requiring counsel to “stat[e] prejudice might unfair that Cerno have specific ground objection, of if specific suffered as a result of the introduction of ground apparent was not from the con doubt, testimony.6 We do not howev- text”). any failWe to discern error under er, that at the evidence was least some- 404(b). Rule probative veracity. what of Cerno’s actually Whether the incident undermined 404(b) Rule prohibits the admission credibility by showing an exercise crimes, of evidence of “other wrongs, or impaired reasonably left acts ... to prove person the character of a jury for the to determine. The Rule 403 in order conformity to show action in analysis aрply we is not a wooden or math- allows, however, therewith.” It for the one; ematical we must allow the trial admission of such evidence pur other “for judge adequate discretion to make a prop- motive, poses, proof such as opportunity, er question determination of the based on intent, preparation, plan, knowledge, iden Thus, or presence during her the trial. tity, or absence of mistake or acci call, although ultimately a close we will not 404(b) added). (emphasis dent....” Rule upset the court’s decision to admit among Included the other proper purposes disputed testimony on this record. for the prior admission of act evidence is See, impeachment. e.g., United States
B
Olivo,
(10th Cir.1995).
1057,
69 F.3d
challenges
States,
also
Cerno
the district
Huddleston v. United
485 U.S.
government
court’s decision to allow the
(1988),
108 S.Ct.
937 691-92, of the 108 eration whether district court com at S.Ct. the evidence. Id. significant procedural mitted error. any 1496. — States, U.S. -, See Gall v. United unambiguous- the court Because district (2007); 586, 597, 128 169 445 S.Ct. L.Ed.2d prosecutor trial the could ly ruled at Smart, 800, 518 United States v. F.3d 803 the inci- Cerno question about Cir.2008). (10th Procedural error occurs not to demonstrate Cerno’s bad dent court, among things, when a other district character, or criminal turpitude, moral (or improperly to calculate calcu “fail[s] limited of purpose but for the disposition, ) ... range, lates] [or] the Guidelines credibility, Cerno’s the evi- impeaching 3553(a) § the factors.” fail[s] consider a proper pur- was for dence admissible (2007). Gall, Only 128 at 597 if the S.Ct. It and otherwise pose. was also relevant procedure may district court follows sound Although 403. a admissible under Rule resulting then whether we consider the helped have re- limiting may instruction in See sentence is reasonable substance. Cerno, none potential prejudice duce Todd, 1128, United States v. 515 F.3d requested. Consequently, consistent (10th Cir.2008); Kristi, 1134-35 437 F.3d Huddleston, the with the test set forth at 1055. run afoul of Rule court did not district 404(b) when allowed A point. Cerno on
question challenges proce Cerno first Ill by of dural reasonableness his sentence urging inaccurately that the district court sentence, life challenge In the to his sentencing guideline, applied a U.S.S.G. court com- argues that the district 4B1.5(b), requires § of which an increase his procedural calculating mitted error five if a has offense levels defendant by erroneously applying five- sentence a perpetrated a “covered sex crime.” Cerno enhancement, sentencing by re- level contends he did not cоmmit a covered comparative amount fusing to consider the conviction, crime his sex offense of he used It of force to commit abuse. 2241(a), § perpetrated 18 U.S.C. further contended that sentence was is against age under of 16. Our person substantively flawed because court legal is de purely question review of this have downward from the should varied v. novo. See States Martinez-Ma United advisory range Guidelines based vari- Cir.2007). (10th cias, F.3d mitigating agree ous circumstances. We guideline Because we conclude court with Cerno the district commit- under applies age to all victims refusing, as procedural error a mat- ted unavailing. is argument law, argument ter of entertain relatively little used to perpe- force was requires a enhancement contested reverse on this trate assaults. We to add sentencing court five levels basis. adjusted when offense level defendant’s sex only of conviction a covered appeal, we review sentences “offense
On engaged if crime ... and the defendant they determine are reasonable. United Kristi, (10th activity involving sex- pattern prohibited States 4B1.5(b). Cir.2006). § Cer- This first entails ual conduct.”8 U.S.S.G. review consid- required "pattern activity” by the en- Although opening disputed as brief Cerno's hancement, reply brief "that сoncedes whether his offense conduct established *12 938 (“For challenge meaning
no’s centers around the purposes guideline: ‘Minor’ of crime,” of a “covered sex which the means an individual ... who had not at- ” “(A) § application 4B1.5 notes define as an age years tained the of 18 .... (emphasis offense, minor, perpetrated against added)). un- (i) chapter der 109A of title United Relatedly, the Supreme has Court held (em- 4B1.5, § States Code cmt. n. 2 that “commentary in the Guidelines Manu- added). phasis Pertinent notes also define al interprets or explains guideline a “minor” “an as individual who had not ” authoritative unless it violates the Consti- ... age years attained the of 18 .... statute, tution or a federal or is inconsis- 4B1.5, § n. 1. cmt. with, tent plainly or a reading erroneous Notwithstanding seemingly these of, guideline.” Stinson v. United definitions, straightforward Cerno asks us States, 36, 38, 508 U.S. 113 S.Ct. 123 beyond guideline look the text of the (1993); L.Ed.2d 598 see also United States itself, pointing to certain crimes within v. Ruiz-Rodriguez, 1275 n. 18, which, Chapter 109A of title as an (10th Cir.2007). 2 argue Cerno does not offenses, element of those require that the commentary violates the constitu- victim age be either below the 12 or statute, tion or a federal but rather that it See, age below the e.g., 18 U.S.C. plainly is a reading guide- erroneous of the 2241(c) § (defining statutory penalties light line in of the statutes cited within the aggravated for sexual assault aof child application § note to 4B1.5. Given our old); years § under 12 (defining 2243 “mi- conclusion that the district court did not nor,” purposes section, for the of that as err in reading guideline and its accom- one who “has age years attained the of 12 notes, panying the definition of “minor”
but age years”); has not attained the of 16 found therein is authoritative and must be 2244(c) § (defining “young children” in- as Thus, applied. because the victim un- old). years dividuals less than 12 But his questionably years old at the time of argument ignores the critical fact that the abuse, she fell within the authoritative provides enhancement itself a conclusive guideline, definition of the and the district “minor,” definition of nothing in Appli- court properly applied the five-level en- cation Note instructs a court to reference hancement. Chapter any 109A—or other statute —to ” meaning afford term “minor other provided than that explanatory note. B Rather, the application note directs the Chapter court to only 109A to determine Cerno next contends the dis whether the offense of conviction is a consider, “cov- trict court by failing erred as a crime,” 2241(a) § ered sex plainly law, is. matter of the relative amount of force Moreover, if Sentencing Commission that he used to commit the sexual abuse. did not intend the definition of “minor” That degree perpe force used to included in application note to apply to trate the assaults was minimal when com issue, guideline at then that pared definition aggravated other cases of sexual entirely surplusage, abuse, would be insists, as “minor” is compels the court’s anywhere not used disputed else in the consideration of “the nature and circum guideline. 4B1.5, § See U.S.S.G. cmt. n. 1 stances of the offense” under 18 U.S.C. enough
there was
evidence at trial to
applicability
establish
dress the
aspect
of this
of the
pattern.”
[such] a
We therefore do not ad-
enhancement.
sentencing
3553(a)(1)
outlined in the
statute.
potentially
goals
of a
differ-
§
in favor
3553(a);
Kimbrough
§
see also
v. United
agree.
We
ent sentence.
—
States,
U.S. -,
558, 570,
128 S.Ct.
dis-
sentencing hearing, the
At Cerno’s
*13
(2007).
At the defense alleged powerful victim had mo- I. The Trial age charge: to fabricate the Until the tives of he example a classic This case was per- in a of 14 she lived with her mother against evidence said. The sole said-she Lunas, New missive environment Los alleged from the Mr. Cerno mother’s death and an Mexico. After her victim, claimed 17-year old niece. She unsatisfactory placement with her father about three occasions over that on at least she was sent to live with stepmother, (at point one she and a half months one in a remote section of grandmother her incidents), when around 30 such claimed reservation, far from her Acoma Pueblo home, pen- Mr. was at no one else subject to strict behavioral friends on one orally digitally, her etrated limitations, which she resented. As re- penis, required her to touch occasion accusation that Mr. Cerno had sult of her breast, leaving on one occasion bit her her, she was sent to live with more *15 abused did not hit or a admitted he scar. She The congenial relatives closer to town. her, threaten but testified physically made theory of the defense was that she that he his advances and she resisted this charges accomplish to up the abuse contact. forced the change. desired witnesses, they but There were other and denied Mr. Cerno took the stand suppоrt prosecution’s no for the provided any type in engaged that he had ever stepmother victim’s father and case. The niece, touched contact with his ever sexual any signs of abuse. There was never saw used any inappropriate way, in or ever her agent An FBI testi- no medical evidence. her. Tr. 341. against or threatened force matter, the investigation her into fied to drunk, a openly being He admitted to which, neither charitably, it was put evenings of his spent testified that he most noth- prompt thorough nor and uncovered outside, sitting in mother’s usually exception the ing probative possible —with the drinking listening truck beer alleged of the victim’s photograph of a radio, garden. sometimes in the corral or year a after she breast taken about drinking that after he would He stated had bit it. As was claimed Mr. Cerno out,” that he did not “pass sometimes but cross-examination, gov- the out in brought “black-outs,” being have the distinction any forensic in- did not conduct ernment black-out, he “can’t that in the case of a bite marks to vestigation compare the merely anything” remember but when Mr. Cerno is Mr. teeth. Since up wake the next “pass[ed] out” he would teeth, physical missing his four front where I was day and “I would remember guilt. of his proof was dubious evidence Tr. 323-24. at and I had done.” what рersis- great showed away prosecution from the his mother was When the attempting bring in before house, in and tence he sometimes “sneaked” unsavory exposure of the drinking, which evidence television while watched incident, variety of theories putting forth a in the house. his mother had forbidden relevance, the district most of which op- that he had no Tr. 338. He testified trial, response rejected. Before charged acts be- court to commit the portunity limine, pros- the motion alone the defendant’s he was almost never cause was rele- that the incident argued ecutor niece. His mother house with his why explained alleged point, judge it At that for the time vant because first “disgust- thought victim Mr. Cerno possibility introduced the that the evidence claim supported thus her ing,” and might impeachment pur- be relevant for nonconsensual. The dis- incidents were poses: that the incident had trict court concluded Well, THE COURT: the reason asked granted probative limited value you up to come back here was it. During in limine to exclude motion professed occurred to me that he has trial, alleged defense asked the after the being cognizant of everything, although whether
victim on cross-examination she pass he would out. And I doubt that. that Mr. had been scared Cerno would might way contradicting And this be a her, prosecutor hurt asked for recon- witness, impeaching or but I still have ground sideration on the the concern is about the incident would show that [sic], very very, nexus is limited or let’s her alleged victim had seen uncle say, attenuated. video, pornographic out in front of a Tr. prosecutor, Spiers, leapt 352. The Mr. “[p]ornography form of violence.” suggestion. Misstating on that the defen- court Tr. 242. The district declined to testimony,2 prosecutor argued: dant’s reconsider. “the presented defendant has himself on Again, after Mr. Cerno’s direct testimo- being, direct as for lack of a de- better motion, ny, renewed the scription, just being benign as drunk ... arguing this time inci- that’s not accurate.” Tr. 352. The [a]nd dent showed that the defendant’s somehow *16 court asked: alleged victim had claim that the fabricat- him against ed the case was “artificial.” THE you going COURT: What are to judge again Tr. The district denied 347. do with this? motion, stating
the that “there hasn’t been MR. SPIERS: I want to ask him if between established a nexus the incident there was an instance when he was conduct, and the defendant’s so far as I am drunk, passed out if there was some- aware.” Id. at on; fact, thing going else and in he begin, could Before cross-examination just passing wasn’t drinking, out and however, judge lawyers called the the back else, something and that there was give prosecutor to anoth- the bench to something a graphic little bit more and a opportunity explain er how the disturbing. little bit more incident was related to the case. There suggests possible Tr. 354. This reason lengthy Although ensued discussion. prosecutor’s persistence trying for the in ultimately denied prose- district court get jury might this evidence in: that a testimony, cution’s motion allow the infer that a man in engages who such light on the discussion casts reasons for its “graphic” “disturbing” conduct as first, prosecu- eventual admission. At passing pornographic out front of a argued again tor the incident was penis exposed movie with his is also some- lack showing relevant to of consent—which might sexually one who teenaged abuse his odd, by since then was clear that the niece. theory not that defendant’s was the en- they repeatedly challenged counters consensual but that did Defense counsel were incident, not occur. argued relevance of the misleading page 2. The were reasons this statement are outlined at 944 below. relevant, comes home and sees him any probative that she if it was that even prej- passed you out and the situation that outweighed greatly value was discussion, And it’s of all this have described. udice. At the end stated, explana- further only. without the court change my ruling. going “I’m not
tion: Id. Tr. 357. proceed.” Please inquired exactly “what Defense counsel the end of the matter. That was not opens said that the door to [the defendant] cross-examination During prosecutor’s “Well, judge that.” The answered: Cerno, following colloquy took of Mr. completely in control of his said he place: senses, judgment. lose That he didn’t Now, you Q. drinking, about Okay. clear, that he it then.” Id. much is lost problem kind of a agree would it’s chimed also “[h]e life, your isn’t it? point said that he has never drunk to the A: Yes. passed where he out and didn’t remember you’re drinking heavily, Q. And when doing,” judge he was to which the what it? impairs your judgment, doesn’t clear, in responded: pretty “Yes. That’s im- eight day long A. cans all isn’t that he denies that his Six to my judgment paired, to where I submit that that occasion going impair doing. losing I’m flies in the face of his denial of don’t know what judgment.” Id. at 377. Defense counsel Q. your judgment to impaired It never judge reminded the of the distinction Mr. you point you don’t know what “passing had drawn between out” doing? are out,” “blacking judge to which the A. Yes. know, you “You can define responded: Q. your Is that answer? any way you want to. If ‘passing out’ he’s drinking A. Because that’s almost unconscious, drunk, out, he is blacked every hour. beer whatever.” Id. *17 point, prosecutor Tr. 362-63. At this the thus free to ask Mr. prosecutor The again, to approach asked to the bench exposure the incident: Cerno about introducing expo- reopen the issue of the agreed Q: Okay. you point sure incident. After the court Do recall a in time however, prosecu- July argument, hear his the time frame of between until day tor asked to reserve the issue of August of 2004 and 31st cross-examination, you at April finished which of when were agreed. completed you After he had judge your also mother’s house and cross-examination, out, prosecutor you remind- drinking, passed been a request “approach your penis exposed, watching ed the court of his with At one last time.” Tr. 376. movie? pornographic the bench argu- point, prompting with no further or A: Yes. ment, judge announced: me, Q: agree with wouldn’t You would significant I’ve concluded that there is judg- you, point your that at that value in impeaching probative value in — much and very ment had become by the inci- impeaching the defendant terribly impaired? mo- dent that has been described A: No. limine, excluding discovery of tion closet, judgment? just Q: That was not bad videotapes in the the incident home, I watched it therefore concluded that the Rule was at so Court A: No one in favor of admit- balanсing weighed out. ting exposure the evidence because the Q: your penis exposed? With im- significant probative had expect anybody I home. A: Yes. didn’t peachment value that was not out- supposed Everybody was unfair weighed by potential preju- its for night. come home dice. they did in fact Q: You’ve learned Order, Op. Dkt. No. Mem. & Dist. Ct. home? come at 10. A: Yes. Q: you’ve victim] learned [the And Analysis II. people back two other came exposure Evidence of the incident was you passed and saw from wake solely purposes impeach- for admitted n your penis exposed, watch- with ment, is, to show that Mr. Cerno’s pornographic movie? ing a jury truthful. to the was not
A: Yes. (8th ed.2004) Dictionary de- Black’s Law me? Q: you agree And would not with act fines as of discred- “[t]he your agree judg- You wouldn’t witness, iting by catching as the witness ” impaired? ment was in a lie.... The Rules of Evidence state No, watching A: because I was it. that, impeachment, for to be admissible it. watching
remember “probative evidence must be of truthful- untruthfulness,” ness or and must “con- later devoted Tr. 381. The character for ] [defendant’s] just-over-seven-page of his page about one cern! truthfulness or untruthfulness.” Fed. closing argument incident. 608(b). If R.Evid. there is evidence that verdict, strange split In a con- “specifically] witness’s contradicts]” of thе more victed serious Mr. testimony, impeachment evidence is admis- aggravated sexual abuse while charges of sible to demonstrate that the witness lacks acquitting charges him of the less serious credibility propensity lying. and has a for aggravated sexual contact. The defense Crockett, United States acquittal for a or a new moved Cir.2006). (10th trial, account of the admission of partly evidence. The district prejudicial transcript any does not reveal state- court the motion and entered a denied ments Mr. Cerno that were revealed as explaining written order the rationale for *18 by untruthful admission of evidence of the admission of the evidence: exposure prosecutor argued incident. The episode that testimony impeaches repeatedly
The at issue De- contradicted drinking “benign that Mr. claim that he was a fendant’s claims did not Cerno’s judgment and that he knew drunk.” never described him- impair his Defendant doing way. what was when he drank. The self in this He testified that his in testimony impeaches drinking breaking up also Defendant’s was a factor his marriage impaired statements that he would sit down and and had his health. He anything drinking. pass not when The testified that he would out from do (but testimony drinking point failing indicates that De- not to the to challenged fendant, in drinking, engage dоing) when did remember what he had been and nature, contrary typical of a sexual to testified to his conduct when at activities testimony represented. evening, what The home in the which consisted of his memory. Mr. occasionally outside or On cross-examination Cerno drinking by himself eight day cans all “[s]ix [of beer] to drink and watch stated: sneaking into the house long going impair my judgment isn’t when his mother was not home. television I doing.” where don’t know what I’m Id. that he never watched He did not state added). (emphasis prosecutor at 362 was never asked. And pornography; he Mr. full repeated Cerno’s statement back that he never he did not state masturbat- him, Mr. confirmed that and ed; asked. It is hard again, he was never correct. Id. Mr. Cerno never testified was contra- exposure how the incident to see perfect, good, that he exercised or even anything to which he testified. dicted judgment respects. in other finally the district court decided When Mr. belief that the references to Cerno’s matter, exposure judge admit the impaired judgment memory related to is his belief that the incident con- expressed logical, and is further substantiated testimony that “he tradicted Mr. Cerno’s essentially was record. This case con- senses, in of his completely was control jury test over which witness the would That much judgment. he didn’t lose his believe. It is evident that Mr. Cerno un- clear, it Tr. that he lost then.” 376. questions along derstood all these lines as suggests slightly two dif- This statement an attack had an essentially on whether he court’s rationale for ferent versions of the memory place of what had taken accurate exposure admitting the evidence: and thus whether the could credit his his “los[t] matter indicated Mr. Cerno prosecutor account. Even after the asked drinking, and that judgment” when incident, Mr. Cerno about the that Mr. Cerno was not demonstrated following exchange occurred: in control of his senses.” “completely Q. you’ve alleged And learned that [the These two concerns are further reflected people other came back and two victim] colloquy court’s with the out, you passed and from the wake saw ruling. After the court its written your penis exposed, watching por- with expressed admitting its reasons for movie. nographic evidence, prosecutor jumped in to add A. Yes. that Mr. Cerno “also said he has Q. you agree And would not with me? point never drunk to the where he agree your judgment You wouldn’t out didn’t remember what he was impaired? was doing,” judge responded: to which the clear, No, in that pretty watching ‘Yes. That’s he de- A. I was it. judgment impaired, watching was it. nies remember I submit that that occasion flies perfectly Tr. It is thus clear Mr. 381. losing judgment.” face of his denial judgment that his ruling, Tr. written the court’s drinking, even impaired when he was at judge “[t]he stated first nothing point passing Defendant’s claims that impeaches issue more than a statement he remem- drinking impair did not in no doing. bered what he was That was *19 doing that knew what he was when he he incident, way impeached by evidence of the But does not out drank.” the record bear which he remembered. concerns.
the court’s to the second version of the court’s As rationale, he that the defen- Mr. Cerno never asserted important It is to stress senses.” impairment “completely of his was in control of his dant’s references openly in He admitted that he would drink judgment all were connection with his well, 324, 342^43, Well, out, passed passed Tr. if I I out. passing of out. point truck, in I sitting If I was would ask out of passed night That he on the keys I’m my going get mom: and entirely is consistent incident exposure sit in the truck. And she knew I wasn’t of testimony, and the remainder with his anywhere. I going to drive So would it. In irrelevant the incident is there, just just sit and the alcohol would carefully testimony, Mr. Cerno dis- direct just want to there make me relax and sit (when out” he “passing between tinguished anything. and not do day what he had the next remembered (when testify “blacking out” he Tr. 345. He did not that he never dоing) and been anything drinking. quoted when The memory). that did He testified had no such testimony merely description what is out” but did not have “black “passed he sitting to do “if he was he would want however, judge, ques- outs.” The district previous the truck.” He testified on the truly any there is distinc- tioned whether page transcript of the that sometimes he passing blacking out and out. tion between my my would “be out with friends or rela- (“You know, you can define See Tr. 377 McCarty, tives back where was drink- you If ‘passing any way want to. he’s out’ asked, ing.” Id. at 344. He was not drunk, out, unconscious, he is blacked volunteer, he did not what he did with whatever.”). out, Assuming that important- them on occasions. More those not, judge the district court there was sometimes, already that ly, he had testified exposure incident con- concluded that house, away when his mother was from the testimony. But the tradicted Mr. Cerno’s he in and watched television “sneaked” Mr. Cerno was question is not whether drinking. pre- while Id. at 338. That is properly; it is whether he using language cisely happened night what on the of the lying exposure and whether the inci- was incident. Mr. Cerno was not asked what lying. dent he was Since he re- proved watched, it; he and he did not volunteer doing night he was membered what he was not asked whether he ever did incident, 381, 383-84, see Tr. anything drinking, of a sexual when nature having passed the district despite and he did not volunteer it. That he inci- wrong court was to conclude pornography apparently watched did lying. was dent showed he something evening of a sexual nature that judge’s next rationale written The impeachment is not when he never testimony also im- ruling “[t]he asked, denied, doing things never peaches Defendant’s statements that he It an nature. enormous stretch to anything down and not do when say may would sit “impeached” that a defendant be challenged testimony indi- drinking. highly prejudicial evidence of a charac- Defendant, drinking, lying when did ter in order to show that he was cates nature, during when he testified that the occasions engage in activities of a sexual truck, just when drank in he would contrary testimony represent- to what and relax not want to sit there do majority rely ed.” The does not on this anything. His to that effect order, portion concluding of the written truthful, entirely if could be even on other the first rationale was sufficient. things he did other of a occasions less Maj. This rationale is Op. equally 932-33. nature drinking. innocuous while judge’s on the record. The unsupported short, given admitting idea that the defendant said he “would sit the reasons for anything drinking,” down and not do while the evidence as were based on an inaccurate recollection of Mr. derives from his Cer- *20 careful, testimony. very precise, no’s testified that he did not
Mr. Cerno never He never called himself a “be-
pass out. or claimed that he exer-
nign drunk” even say nor did he “good judgment”;
cised always nothing” while drink-
that he “did incident did
ing. Because the any actually contradict of Mr. Cerno’s
testimony, probative impeach- it had no
ment value. respectfully
I therefore dissent from majority’s opinion.
Part II McPHAIL, Rep
Barbara Jean Personal Ray
resentative of Estate of Willis
McPhail, Plaintiff-Appellant, COMPANY,
DEERE & Delaware
Corporation, Defendant-
Appellee, 1-3,
John Does Defendants.
No. 07-6142. Appeals,
United States Court of
Tenth Circuit.
June