UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Leslie CHAPMAN, Defendant-Appellant/Cross-Appellee.
Nos. 15-2143 & 15-2173
United States Court of Appeals, Tenth Circuit.
October 24, 2016
839 F.3d 1232
The [G]uidelines view some organization or person that is able to deal in large quantity-quantities of drugs, of course, having more significant and adverse effect on the community than one that deals in small amounts and only has access to small amounts. And as the government argued, the facts in this case illustrate that Mr. Godinez, as well as his co-defendants, were able to-to deal in sizable quantities of drugs, at least in the pound quantities, if not the kilogram quantities, and were willing to start, you know, two, four ounces of methamphetamine at a time. And the methamphetamine was almost pure, 98 percent. All of which, of course, suggests that they are players in an organization that is a significant organization and has access to big quantities of drugs and pure quantities of drugs relatively close to the ultimate source of the methamphetamine.
Id. at 50-51. Nothing about this statement is erroneous, and Godinez does not suggest otherwise. Nor does Godinez argue that the district court abused its discretion in concluding that the amount and purity of the methamphetamine involved in this case was relevant for purposes of determining Godinez‘s relative role in the conspiracy at issue.
Finally, and perhaps most importantly, we conclude that Godinez‘s “lack of empirical basis” challenge to the offense levels that
III
The case is REMANDED to the district court with directions to VACATE Godinez‘s sentence and resentence him.
Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant-Cross-Appellee.
Dean Tuckman, Assistant United States Attorney (Damon P. Martinez, United States Attorney, and William J. Pflugrath, Assistant United States Attorney, on the briefs), Office of the United States Attorney, Albuquerque, New Mexico for Plaintiff-Appellee-Cross-Appellant.
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
EBEL, Circuit Judge.
In appeal No. 15-2143, Chapman challenges the district court‘s decision to permit the Government‘s expert witness, Gail Starr, a certified sexual assault nurse examiner, to testify at trial that D.V.‘s conduct in scratching herself across the chest after the altercation was consistent with conduct exhibited by sexual assault and domestic abuse victims to cope with the trauma they have experienced. The Government presented Starr‘s testimony to counter Chapman‘s argument that D.V. scratched herself instead to fabricate evidence against him. We conclude the district court did not abuse its discretion in admitting Starr‘s testimony.
I. BACKGROUND
Viewed in the light most favorable to the jury‘s verdict, see United States v. Jim, 786 F.3d 802, 804-05 (10th Cir.), cert. denied, --- U.S. ---, 136 S.Ct. 348, 193 L.Ed.2d 249 (2015), the evidence presented at trial established the following: Chapman, now a civilian, had surgery to correct injuries to his nasal cavities suffered during his service in the Air Force. After the surgery, Chapman and D.V. stayed in VA housing in Albuquerque, New Mexico, for several days while Chapman recuperated before returning home to Abilene, Texas.
Three days after surgery, a physical altercation occurred between Chapman and D.V. Each accused the other of being the aggressor. According to Chapman, D.V. sucker-punched him with a closed fist to his surgically repaired face, punched him in the ribs, where surgeons had removed cartilage to implant into his nose, and then kicked him in the groin. D.V., on the other hand, testified that Chapman refused to allow her to leave their quarters by grabbing and holding her against her will. He also hit her several times. Although D.V. stated that she took a swing at Chapman to get away from him, he ducked and she did not land the punch.
After the altercation, Chapman had a scratch on his cheek. D.V. had a broken index finger on her right hand and a small cut on her right palm, as well as bruises on her arm, back, sides, and foot. Photographs of D.V. taken by VA police officers right after the altercation revealed no scratches on her chest. But photographs taken four hours later showed obvious scratches. D.V. told police that Chapman had inflicted those scratches.
The United States initially charged Chapman under the ACA with two state misdemeanor offenses-aggravated battery against a household member, in violation of
A. The district court did not abuse its discretion in admitting Nurse Starr‘s expert testimony
Prior to trial, the defense pointed out to the Government that in the photos taken of D.V. right after the altercation, there were no scratches on her chest, but in photos taken four hours later, there were obvious scratches. When prosecutors asked D.V. about the scratches, she stated that she must have caused them.
Nine days before trial was set to begin, the Government notified Chapman, see
The court then ruled that Nurse Starr could not testify about a condition called non-suicidal self-injury, because that condition applies only when an individual has self-inflicted injuries on at least five occasions during a year‘s time and there was no indication that D.V. had ever previously injured herself. But the court held that Nurse Starr could testify that a single trauma could be so severe that a person could injure herself once, as a coping mechanism to deal with that trauma. The court then granted Chapman‘s request for a thirty-day continuance so that the defense could obtain its own expert to challenge or rebut Starr‘s testimony. The defense obtained an expert, but did not present his testimony at trial. Chapman renewed his objection to Starr‘s testimony, both just prior to and at trial. The court overruled each of those objections.
During trial, D.V. testified that originally she thought that Chapman had scratched her chest during the altercation but acknowledged that, because the scratches were present only in the later photos, “they had to be self-inflicted.” (IV R. 480.) Nevertheless, she did not remember when or why she scratched herself. On cross-examination, D.V. admitted that when she spoke with police after the altercation, she told them Chapman had scratched her chest because “I did not know that I had caused those scratches.” (Id. 506.) Through cross-examination, the defense suggested that D.V. had scratched herself to fabricate evidence against Chapman.
Nurse Starr then testified to the following: In her experience, it was “fairly normal” for people involved in trauma or under great stress to cause injury to themselves, and not to recall having done so. (Id. 538.) The self-injury could “be a one-time deal,” “a way of coping with a lot of stress, hopelessness, depression,” “a coping mechanism, a way of calming yourself down, making yourself feel better. It‘s not a healthy one.” (Id. 542.) Starr further cited and discussed articles that supported her testimony. In Starr‘s opinion, D.V.‘s actions in scratching herself were consistent with being a victim of domestic violence. Starr, however, further testified that, although she had seen the
At the conclusion of trial, the district court, without objection from the parties, instructed the jurors:
During the trial you heard the testimony of a government expert, who expressed opinions concerning possible reasons persons inflict injuries on themselves. In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters.
You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.
(I R. 245.)
On appeal, Chapman challenges the district court‘s decision to admit Nurse Starr‘s testimony on several grounds.
1. he district court did not abuse its discretion in determining that Nurse Starr‘s testimony was admissible under Fed. R. Evid. 702
The district court permitted Nurse Starr to testify as an expert under
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of this case.
a. Reliability
In determining whether proffered expert testimony is reliable,
Moreover, during her testimony, Nurse Starr acknowledged that she had not personally evaluated D.V. and opined only that D.V.‘s scratching herself was consistent with conduct exhibited by victims of domestic violence and sexual assault as a mechanism to cope with their stress. Nurse Starr did not testify that D.V. was a victim of domestic violence nor that that was the reason she scratched herself. Cf. United States v. Charley, 189 F.3d 1251, 1256, 1264 (10th Cir. 1999) (upholding admission of opinion of expert who had interviewed purported child victims “that the evidence is consistent or inconsistent with the victim‘s allegations of child abuse, and allowing [the expert] to inform the jury of characteristics in sexually abused children and describe the characteristics the alleged victim exhibits“) (internal quotation marks omitted).
b. Relevance
Chapman challenges the district court‘s ruling, arguing that, because it is undisputed that D.V. scratched herself after the altercation, Nurse Starr‘s testimony about why victims of domestic abuse might injure themselves did not bear on a material fact. But whether D.V. acted consistently with being a domestic violence victim was material to the critical question at issue at trial of whether she or Chapman was the aggressor during their altercation. Moreover, Chapman made the question of why D.V. scratched herself a material fact by arguing that D.V. had scratched herself in order to fabricate evidence against Chapman, perhaps trying to cover up that she was the aggressor instead of him. Thus, Nurse Starr‘s opinion that D.V.‘s conduct in scratching herself after the altercation was consistent with her being a victim of domestic violence was relevant because it bore on material facts disputed at trial.
Chapman further contends that Nurse Starr‘s testimony was not relevant because the Government sought to use it to bolster D.V.‘s credibility, and expert testimony regarding a witness‘s credibility is not appropriate. See Charley, 189 F.3d at 1267 (“In general, expert testimony which does noth-ing but vouch for the credibility of another witness encroaches upon the jury‘s vital and exclusive function to make credibility determinations, and therefore does not ‘assist the trier of fact’ as required by Rule 702.“). The district court did not abuse its discretion in rejecting this argument. In permitting Nurse Starr to testify, the district court ruled that she could not testify that D.V. was telling the truth, nor that D.V. was not the aggressor, but only that D.V.‘s conduct in scratching herself was consistent with that of a domestic abuse victim using self-injury as a coping mechanism. As the district court noted, such testimony did not directly bolster D.V.‘s explanation of why she scratched herself because D.V. testified that “[s]he does not know why she scratched herself.” (I R. 188.)4
c. Manner in which district court conducted Rule 702 analysis
Before admitting expert testimony, the district court must conduct
The Government gave notice of its intent to present Nurse Starr‘s expert testimony just a few days before trial was set to begin. Under those circumstances, the
2. The district court did not abuse its discretion in admitting Nurse Starr‘s testimony under Fed. R. Evid. 403
Chapman next contends that, even if Nurse Starr‘s testimony was admissible under Rule 702, the district court abused its discretion in admitting her testimony because its “probative value” was “substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues,”
The Tenth Circuit affords district courts “considerable discretion in performing
3. Conclusion as to Nurse Starr‘s expert testimony
For the foregoing reasons, the district court did not abuse its discretion in admitting Nurse Starr‘s expert testimony.
B. The district court did not err in using state, rather than federal, law to determine the maximum term of probation and the maximum fine available
The Assimilative Crimes Act (“ACA“) provides, in pertinent part, that
[w]hoever . . . is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted in the jurisdiction of the State, Territory, or District in which such place is situated, by the laws therein in force at the time of such act or omission, shall be guilty of a like offense and subject to like punishment.
The purpose of the Assimilative Crimes Act is to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction. The Act fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves. United States v. Garcia, 893 F.2d 250, 253 (10th Cir. 1989) (internal quotation marks omitted).
At sentencing in this case, the district court ruled that the ACA required that New Mexico, rather than federal, law provided the available range of probation and fines. In light of that, the district court sentenced Chapman to what the parties represented to the court as the maximum term of probation permitted under New Mexico law-one year-even though federal law provides for up to five years’ probation for a misdemeanor, see
1. The district court‘s decision to use state law was consistent with the ACA‘s language and purpose
Reviewing de novo, see United States v. Gaskell, 134 F.3d 1039, 1041 (11th Cir. 1998), we affirm the district court‘s use of state law to determine Chapman‘s term of probation and fine. The ACA‘s language expressly requires that a federal offender receive a punishment “like” that available under state law for the same offense. See
The ACA‘s language does not suggest that a sentencing court should treat differing forms of punishment differently. Instead, we read the ACA to take a holistic approach, requiring federal courts to look to state law to determine the range of different forms of punishment available when sentencing an ACA offender. Doing so serves the ACA‘s purpose, “to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction,” Garcia, 893 F.2d at 253 (internal quotation marks omitted). We, therefore, affirm the district court‘s decision to use the probation and fine ranges provided by New Mexico law to sentence Chapman. See United States v. Harris, 27 F.3d 111, 116 (4th Cir. 1994) (applying
2. 18 U.S.C. § 3551(a) does not require a different result
[e]xcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute, including sections 13 [the Assimilative Crimes Act] and 1153 [addressing offenses committed in Indian country] of this title . . . shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.
(Emphasis added.) The purposes set forth in
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]
The Government contends that
There is no language in either the ACA or
A federal sentencing court will decline to apply state law to sentence an ACA offender if doing so violates federal penal policy. See United States v. Christie, 717 F.3d 1156, 1172 (10th Cir. 2013). This court has previously applied this rule-an exception to the ACA‘s mandate to impose a punishment “like” that available for the same offense under state law-to sentencing provisions that conflict with explicit federal law.
[F]or example, we do not require district courts to follow state parole policies given Congress‘s express abolition of parole in the federal system. See United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985). Neither may federal courts ignore congressionally mandated sentencing guidelines in favor of state sentencing guidelines. See Garcia, 893 F.2d at 254. And federal courts cannot impose the death penalty relying on state law when doing so would upset Congress‘s judgment about when capital punishment is and is not warranted. See Lewis v. United States, 523 U.S. 155, 170 (1998). Christie, 717 F.3d at 1172; see also United States v. Sain, 795 F.2d 888, 890-91 (10th Cir. 1986) (holding federal court was not required to provide jury trial for ACA offense when federal law did not permit it, but state law did).
Here, on appeal, the Government vaguely suggests that the district court‘s decision to look to state law to set the range for probation and fines was contrary to federal penal policy. But the Government fails to identify any such federal penal policy, and we can find none.
The Eleventh Circuit has held that, under the circumstances presented in United States v. Gaskell, “federal judges sentencing under the ACA may exceed the state statutory maximum term for a sentence of probation when necessary to effectuate the policies behind the federal probation statutes,
Unlike parole, however, the federal penal system has not abolished probation. In fact, both federal and state law provides for a term of probation for Chapman‘s offense, as well as the imposition of a fine. So, unlike imposing parole contrary to the federal system‘s abolition of parole, imposing probation or a fine does not directly contradict any federal penal policy, at least none that the Government identifies. In summary, we decline to follow Gaskell and hold, instead, that with the Assimilative Crimes Act, a federal sentencing court imposing a fine and probation is limited to any state limits applicable to the crime of conviction.
For these reasons, then, we affirm the district court‘s use of New Mexico law to
III. CONCLUSION
For the foregoing reasons, we AFFIRM Chapman‘s conviction and sentence.