United States v. Mark Kevin Binder

States, S-82-463, 41(b); slip op. generally Wright, No. at see v. United C. A. Miller 22, 1983). (E.D.Cal. July Cooper, and E. Federal Practice and Proee- dure The dismissal of D.C. § implied court’s The district denial No. prevent C.V. S-82-463 cannot Marin to amend was “on motion for leave based proceeding from with D.C. No. Civ. S-83- First, ground futility.” at [Id. 9] 329. the court found that the second amended jurisdictional complaint did not resolve the 405(h) and 1395Ü.

bar of U.S.C. §§ [Id. Additionally, the second amended

at 10] allege governmental

complaint failed to

conduct that would actionable “if the private party, were a and ...

United States

therefore failed to state FTCA claims.” Finally, alternatively, the motion

[Id.] proposed was futile because “the second America, UNITED STATES of complaint, filed, amended were it to be Plaintiff-Appellee, subject would be to dismissal on the (em- ground at of untimeliness.” [Id. 11] added). phasis BINDER, Mark Kevin Defendant-Appellant. quite court was clear that it district dismissing the action for lack of sub- No. 84-1249. jurisdiction: ject matter Appeals, United States Court of complaint amended [Plaintiffs’ [first] for several Ninth Circuit. must be dismissed reasons.

First, jurisdiction appear FTCA does not Argued and Submitted Feb. 1985. complaint on the face of the alleged prior presenta- plaintiffs have not Aug. Decided appropri- their tort claims to the tion of agency required by

ate federal 2675(a),

U.S.C. there is no § jurisdiction

FTCA to review claims aris-

ing under the Medicare Act. 42 U.S.C. 405(h), Furthermore, plain- 1395Ü.

§§ failed to

tiffs have state FTCA claim they allege

in that have failed to conduct

that would be actionable under state law private per-

if the United States were a

son. 28 U.S.C. 2674. For each of § reasons, plaintiffs’

these amended com-

plaint will be dismissed. [CR 8] event, any

In since leave amend was judgment of dismissal which effect, majority judicata holds has res inadequacies

must have been based on the i.e., complaint,

of the first amended lack of

subject jurisdiction. Judgment matter subject juris- for lack of matter

dismissal by plain- not bar another action

diction does E.g., Segal

tiff on the same claim. Co., Telephone Telegraph

American & (9th Cir.1979); Fed.R.Civ.P. Cooper, Atty., Tuc-

Jon Rick Asst. U.S. son, Ariz., plaintiff-appellee. for Leon, Tucson, Ariz., for de- Francisco fendant-appellant. WALLACE, HUG, SKOPIL,

Before Judges. Circuit SKOPIL, Judge: Circuit appeals Mark Kevin Binder from his con- under Arizona statutes on four viction and sexual con- counts of child molestation minor. Binder claims that the duct with a (1) admitting his by: district court erred in post-indictment, post-arrest statements rights the fifth and violation of his under Federal Rule of sixth amendments and 5(a); determining Criminal Procedure apply the state statu- that it was bound to sentence; (3) allowing testimony concerning ability the children’s tory minimum distinguish complaining truth from falsehood witnesses’ reality fantasy. ex- from The court admitting denied testimony; and suppress motion to and allowed the psychiatric pert psychological and testimo- testimony. complaining could ny that witnesses distinguish The dis- truth from falsehood. compe- The trial court found the children jurisdiction pursuant court had trict testify. apprehen- tent to To relieve their applies juris- which federal U.S.C. § court, appearing siveness trial about by non-Indians diction to crimes committed parties agreed and the to substitute against on Indian land. We re- Indians videotaped testimony for verse. their live deliberations, During jury requested FACTS AND BELOW PROCEEDINGS permission room Ariz.Rev. Binder was convicted under of Af- the children. 13-303.A.2, and 13- Stat.Ann. §§ chambers, argument grant- ter the court four counts of child molesta- 1410 jury’s request. ed the defendant and with a minor. The tion sexual conduct pro- during not in-chambers complaining witnesses were a five and sev- ceedings playing tape. or the of the Dur- brother, year-old en sister and Vanessa and ing videotape, Molina, Joseph temporarily who lived with skip preliminary portions asked to mother, missionary Binder and his who tape selectively tape. and prosecutor operated a crisis center. The granted request The court first and called seven witnesses addition to denied the second. Both communications year-old girl, A two children. seventeen between the and occurred with- Wichapa, Lorraine had resided who consulting out counsel or the defendant. ward with the Binders when she was six- replay, Several hours after the teen, alleged testified to instances of sexu- guilty returned a verdict of on all four al advances Binder similar to those counts. Binder was to four con- sentenced charged by prosecutor the children. The sentences, seven-year presump- current introduced this evidence to show that Bind- tive minimum under Ariz.Rev.Stat.Ann. alleged er’s molestation of the children was 13-701.B.1, 13-1405.B, and 13-1410 §§ testimony, not in- accidental. Additional (1984), parole eligibility with to be deter- cluding evidence of affectionate be- letters appeal mined law. fol- under federal This herself, tween Binder and cast doubt lowed. Wichapa’s credibility. Joseph Ms. Molina’s teacher, neighbor who was also a DISCUSSION Binders, was called to association establish 1. Admission of Binder’s Statements. psy- Binder and the children. Two between chologists psychiatrist and a con- testified A. Standard of Review cerning their examinations of the children A determination that defendant complaints. A after court counselor knowingly, voluntarily intelligently, and supervision described her of the children’s rights only waived is if Miranda reversible placement Finally, with Binders. clearly erroneous. Glo United States v. agent investigation FBI described the 857, ver, 596 F.2d 865 de arrest of Binder. None of the witnesses nied, 860, 124, 444 U.S. 100 S.Ct. 62 specific allegations corroborated the (1979). legal L.Ed.2d 81 The waiver of regarding children Binder’s sexual ad- rights following warnings also Miranda vances. rights constitutes a waiver those under trial,

Prior to to suppress moved Federal Rule Criminal Procedure post-arrest opposed X, statements. He also Boy United States v. F.2d Indian 565 585, (9th Cir.1977), psychological psychiatric trial 439 twice, rights 131, read. Binder was read his 841, 58 L.Ed.2d 139 99 S.Ct. form, signed waiver and stated that his (1978). attorney. would retain an

mother B. Merits that, totality of court concluded under the circumstances, the defendant under- during obtained For a confession validly rights. waived his There stood and admissible, interrogation to be custodial demonstrating were sufficient facts the ele- rights must be of Miranda any waiver necessary ments for a valid waiver. Under intelligent. Mi knowing, and voluntary, review, clearly our erroneous standard 479, Arizona, 384 U.S. randa v. upheld. ruling the trial court’s will be See 1602, 1630, A S.Ct. Moreno-Lopez, v. United States upon totality depends valid waiver (9th Cir.1972) (knowing, intelli- including the back: the circumstances gent, voluntary found in case waiver experience, and conduct of defend ground, nineteen-year-old high had attended Butler, where 441 U.S. v. ant. North Carolina America, well, 1757-58, spoke English school in 369, 374-75, questioning that un- (1979) (citing indicated before she v. Johnson Zerbst, rights). derstood her But see Heldt, (1938)). F.2d signed A waiv States v. 82 L.Ed. 1461 when, Cir.1984) (waiver to be considered. invalid after Mi- one factor er form Nick, warnings, right randa defendant invoked United States Blocker, (9th Cir.1979); sign and refused to a waiver United States to silence 1195, (D.D.C. n. 11 F.Supp. incriminating 1198 & thereafter made 354 form but (D.C.Cir.1975) aff’d, statements). 1973), 509 F.2d 538 of (mem.). prosecutor has the burden Binder’s claim that admission of pre is a showing a valid waiver. There rights under the his statements violated his sumption against waiver. North Car sixth amendment and Massiah v. United 373, olina, 99 at 1757. 441 U.S. at S.Ct. 1199, States, 377 U.S. 84 S.Ct. Although signed a waiver of (1964), is without merit. L.Ed.2d 246 also that he did not want rights form and stated rights un The standard for waiver of long so as he could lawyer to be a same as the sixth amendment is the der time, questions any at he stop answering amendment, is, that vol that for the fifth against factors that militate cites several knowing, intelligent. untary, and United (1) knowledge finding waiver: his lack of (9th Karr, 742 F.2d 495-96 States (2) testimony process; the indictment Williams, Cir.1984) (citing Brewer v. arresting agents that Binder one 387, 404, U.S. 97 S.Ct. read; (3) by a federal not coercion could (1977)). The district court’s L.Ed.2d if he were who told Binder that agent finding of Binder’s fifth valid waiver agent willing the case then to discuss uphold rights applies equally to amendment court; (4) good report make a to the would finding of of his sixth amendment waiver court to find that the the failure of the (valid Nick, at 1201 rights. See 604 F.2d knowing intelligent; and waiver was despite right waiver of to counsel defend psychologist’s that Bind retardation, skills, limited verbal ant’s mild low; knowledge very general was er’s he did not know what defective;” and that he was “borderline signed that he it waiver form meant and with a “functional operating since he was him). help thought he it would because may trouble learning disability” he assimilating information. Miranda challenge admis Binder’s to the under Federal sibility mili- of his statements all factors

The trial court considered A waiver, Procedure 5 also fails. finding includ- Rule of Criminal tating against a rights constitutes and defendant’s waiver of Miranda ing arresting agents’ rights Rule 5. Indian waiver of the under could not testimony that the defendant X, ing mandatory Even if there court reduce a Boy 565 F.2d 591. state delay arraign were a between arrest sentence. ment, during delay statements elicited Binder’s that the contention dis (1) they are not inadmissible if are volun trict in failing court erred him sentence (2) their tary; weight jury; is left to the pursuant to the Federal Youth Corrections (3) they occurred within a short time Act, (FYCA) 18 U.S.C. §§ 3501; after arrest. 18 U.S.C. § without merit. The district decision court’s Manuel, 706 F.2d 913 & n. 11

States v. pursuant not to sentence in to the FYCA (9th Cir.1983). findings The trial court’s applicable stead of other will law not be of Binder’s statements to the voluntariness disturbed absent abuse of discretion. elements were persuasive. were These Robinson, 201, 218, Cf. Ralston v. met. 233, 244, 70 L.Ed.2d 345 (decision to sentence under FYCA reviewed Sentencing. 2. discretion). for abuse of The district court A. of Review Standard concluded this defendant “not statutory A trial inter court’s suitable for treatment under Youth [the] pretation is reviewed de novo. United Corrections Act.” There was no abuse of Launder, States v. 688-89 discretion.

(9th Cir.1984). Sentencing which occurs statutory parameters within is reviewed for Replay Videotaped Testimony. abuse of discretion. United States v. A. Standard Review 1012, 1014 Chiago, — denied, —, U.S. replay testimony A decision dur (1983). ing jury will deliberations not reversed absent an abuse discretion. United B. Merits Sims, States v. — assignments Cir.1983), —, None of Binder’s concerning of error his sentence has merit. S.Ct.

First, citing Smith, United 574 States (9th denied, Cir.), F.2d 988 cert. 439 U.S. B. Merits 852, 158, (1978), 99 58 L.Ed.2d S.Ct. 156 Binder the replay asserts that that, Binder notwithstanding contends the videotape of the jury during the room Act, 13, Assimilative Crimes 18 U.S.C. a § prejudicial emphasis placed deliberations on sentencing federal court is not bound a complaining testimony. the witnesses’ We mandatory state minimum sentence. The agree. rereading The of a witness’ testi “subjects persons Assimilative Crimes Act mony unduly empha is when disfavored it on lands prosecution federal to ... in fed testimony. sizes that See United States v. eral court for criminal violations of stat Nolan, 486 utes of the state in which federal the lands denied, 462 U.S. Kiliz, are located.” United States v. (1983). L.Ed.2d 1354 The determination to (9th Cir.1982) (citing F.2d rereading or rehearing testimony allow of Co., States v. Press Publishing particular must be based facts and cir 9-10, 212, 213-14, 55 L.Ed. 65 the emphasis cumstances of case. Undue (1911)). Under the Assimilative Crimes particular testimony of per not be should Act, obliged impose the district court is to mitted. sentence, applicable the state but must parole turn to the federal statute Videotape for re testimony unique. is Smith, solving parole matters. jury 574 F.2d at It to enables the observe the demeanor complied 992. The district court with testimony the to hear the the of witness. authority support statute. We find no to It equivalent serves as the functional of a Binder’s contention that a federal sentenc- live physical witness. Since there nowas evidence, (1) the evidence of acts of mo- replay also claims that the presented through chil- lestation was the improper tape because the was never ad- testimony. videotaped The defend- dren’s evidence; mitted into replay the violated conduct, any asserting criminal ant denied process right respond his due to to adverse him displeased the children were with testimony right and his under Federal Rule charges against him were vindic- and their 43(a) of Criminal Procedure to be Credibility tive. became a crucial issue. every trial;”2 (3) “at stage of the depu- the videotaped these circumstances the Under ty court presence jury clerk’s in the room great signifi- taken on testimony may have operate to the videotape equipment was Allowing jury the to see and hear cance. prejudicial; the court erred in com- videotaped testimony a sec- municating jury, with the without consult- during jury time in the room delibera- ond counsel, ing concerning way tape the unduly emphasized testimony.1 tions replay was to be reviewed.3 Since the problems with the There are additional videotaped testimony was erroneous on replay videotape. judge grant- of the grounds, other we do not reach these alter- tape in jury’s request replay ed the to grounds native for reversal. abridged replay fashion. Failure to an may placed tape entirety in its Expert Psychological 4. Admission emphasis portion on the of the testi- undue Psychiatric Testimony. mony jury revealed to the a second time. A. Standard of Review replay repetition allowed the of the The trial court’s decision on the government’s against may case Binder and admissibility testimony is re inappropriate significance have taken on viewed for an abuse of discretion or jury’s deliberations. The trial court “mani Marabelles, United States allowing replay abused its discretion in fest error.” videotape during Cir.1984). of the deliberations. Errone- Permitting including impaneling jury of the testi- and the mony jury during verdict, in the room deliberation was imposition return of the sentence, and at the equivalent allowing testify live witness to except provided by as otherwise this time second in the room. The same con- Christopher, rule.” See United States v. procedures employed sideration and should be (9th Cir.) ("defendant generally is videotaped testimony employed for rereading as are in the required present during stages all appropriate of live it If process”), criminal allow the to hear S.Ct. Both all, preferred pro- witness a second time at concerning the in-chambers discussion the re require preparation cedure would of a tran- play videotape and the actual out script videotaped testimony rereading and a presence may side the defendant’s well have of that to the in the courtroom 43(a), although violated Rule defendant’s failure parties present. with all invoke rule have resulted in a waiv The dissent is critical of our conclusion that 672, Gagnon, er. United States v. 721 F.2d 678 the district abused his discretion in re- (9th 1983) (no found), Cir. waiver of Rule 43 playing videotape. Specifically, the the dissent —rev’d, —, —, 1482, 1483, U.S. allowing finds little difference between the re- (1985) (waiver 84 L.Ed.2d 486 of Rule 43 play videotape allowing replay of a the of found). dissent, audiotape. an Unlike the we believe allowing the that ny, especially of testimo- that, consulted, 3. Binder claims had he been he us, partic- on the facts before was objected replay. would to the selective As ularly prejudicial. Certainly it would have been noted, already we have impermissible the selective add- a live to allow witness to enter prejudicial repeat tape. ed room to his or her to effect of the There- Often, fore, videotapes are substitutes for live testi- while we do not and need not rule on these mony audiotapes. and therefore distinct from specifically, additional issues we note that there We convinced that this case the remain in video- may prob- well have been a number of other tape equivalent of live was functional testi- videotape replay lems with the in this case. mony analogous audiotape. and not to an Thus, disfavoring there are sound reasons for practice. this 43(a) provides 2. Fed.R.Crim.P. de- ‘‘[t]he arraignment, fendant shall at the at be stage plea, every the time of the of the trial 602 expert testimony experience. re- in jurors

ous This is an area which admission of did need additional assistance. The not probably versible if the admission more expert testimony pur- admitted was not for materially than affected the verdict. not poses determining compe- of Valle-Valdez, v. 554 United See States testify. to tency began, Before trial 911, Cir.1977). (9th 916 competent found the the court children their testimony videotaped. allowed to be B. Merits testimony experts long came testify if Expert may witnesses preliminary competency after the determi- testimony if they qualified are had nation been made. understanding assist of fact in will the trier Nor was this an where instance the ex- determining a in issue. the evidence or fact testimony pert solely was admitted to aid 1148, Amaral, 488 F.2d United States v. understanding credibility evalu- (9th Cir.1973). Expert testimony 1152-53 problems or ations common to all children permitted not be if it concerns a should See, age. e.g., People of the victim’s v. testimony, subject improper expert for for Roscoe, 1093, 1098-99, Cal.App.3d 168 example, province one invades the 45, (5th Dist.1985) Cal.Rptr. (expert 48-49 jury. (expert testimony Id. at 1153 testimony credibility particular as a to eyewitness testimony unreliability impermissi- child molestation victim was excluded). properly Credibility is a matter ble); 247, People Bledsoe, 236, 36 Cal.3d jury. to be decided See 450, Cal.Rptr. 681 P.2d Barnard, 490 F.2d States (1984)(expert testimony upon profes- based (9th Cir.1973)(trial properly court excluded experience sional research or as to a class testimony psychiatric psychological of victims to admissible rehabilitate credibility codefendant, prosecution to credibility). molestation victim’s The tes- witness), denied, U.S. S.Ct. experts timony in this case was not (1974). 40 L.Ed.2d 310 Accord Unit psychological limited to references to litera- Awkard, ed States v. experience ture or or to discussion of Cir.), S.Ct. generally. class of victims Rather the ex- claims particular perts testified that these children experts that while none allowed particular could this case be believed. testify specifically complaining as to the impermissibly being in effect was credibility, witnesses’ the effect of ex accept expert’s asked determination pert “improperly was to but particular that these witnesses were truth- credibility. agree. tress” that We ful. physical sup- There was no evidence Finally, the admission erroneous port allegations, or contradict children’s expert testimony was not harmless. But alleged and there were witnesses no to the Barrett, cf. United States v. offenses. Binder maintained his innocence (9th Cir.1983) (erroneously admitted story and that the children invented the because, expert testimony not reversed they angry because were at him. The ver- factors, among ample corroborating other credibility necessarily dict turned on the support conviction); evidence to Awk- expert Binder and the children. The three ard, (ample 597 F.2d at 672 evidence to the complaining witnesses testified support conviction rendered erroneous ad- distinguish reality witnesses were able harmless). mission of fantasy from truth and from falsehood. Here, objectionable testimony the con- The effect of the testimo- witnesses’ cerned crucial issue in the case. Indeed ny story was to the bolster children’s and specially jury the asked to see the doctors’ usurp jury’s fact-finding to function. deliberations, reports during suggest- thus jurors’ responsibility It is the to determine ing jury given substan- credibility by assessing emphasis witnesses tial to the doctors’ evaluation of testimony light in credibility. witness their own the children’s specific testimony

CONCLUSION and the delay it causes in the trial.” provides Id. Nolan admitting err in The trial court did not little holding by assistance to the the ma- applying Binder’s statement or in the state jority. statutory minimum sentence. It was error permit jury to to judges The latitude of trial in this area testimony jury during in the room delibera- has been universally considered to be tions, expert testimony during and to allow great. majority The cites no case in which ability the trial as to the children’s to dis- a recent circuit court has deemed a decision tinguish truth from falsehood. testimony to reread an abuse of discretion. Appellant’s conviction is REVERSED. King, See United States v. 552 F.2d (9th Cir.1976), denied, 430 WALLACE, concurring in Judge, Circuit (1977) part dissenting part: see, Nolan, (King), e.g., 486; 700 F.2d at majority The rules on four issues: Luca, United States v. De 692 F.2d voluntary whether Binder made (9th Cir.1982)(not abuse of discretion knowing rights waiver of his Miranda be- deny request to to reread because district statements, (2) making incriminating fore judge is “better able to determine whether whether Binder’s sentence was an abuse of the ‘beneficial from allowing effects discretion, (3) judge whether the district jury to part review a transcript by replaying part abused his discretion outweigh the risk that the give will videotaped testimony, weight undue part to that of the evi judge whether the district abused his dis- ”) (De Luca), dence.’ quoting United by admitting expert testimony cretion con- v. An Drug, States Article ability cerning the children’s to discern (9th Cir.1981) curiam) (per (Drug). reality truth from falsehood and from fan- (not King, See also 552 F.2d at 850 abuse tasy. agree majority I with the that the grant request of discretion to to reread first two issues no abuse of discre- portions testimony). tion, disagree but that a new trial is re- judge The district is in a position better quired majority due to what the concludes than we are to determine whether bene- is an abuse discretion on the last two allowing fits to review the issues. videotaped testimony outweighed the risk majority The reasons that the district give weight that the would undue to judge in replaying abused his discretion portion Luca, of the evidence. De part videotape unduly because it 1286; F.2d at Drug, 661 F.2d at 746. In- emphasized of the children. deed, in this judge, case the district opinion relies on United States v. discretion, exercising his considered the Nolan, replaying benefit to Binder in the video- tapes. deciding In grant jury’s re- (1983). Nolan, upheld In we quest, he stated: a district court’s exercise of discretion in they just crackerjack If had been wit- refusing testimony. to reread certain nesses I would a little be bit more reluc- major proposition of Nolan is that trial “[a] tant, hesitant, they very but partic- were given great deciding court latitude in ularly Vanessa. I thought didn’t—I testimony requested by whether reread strong enough get jury.” Id. 486. The defendant in past your arguing acquittal, motion for I Nolan was for reversal on the but know, ground you that the didn’t think that it had refused to re it’s was— question credibility. still a justified just read certain We I’m to, judge’s feeling sought particu- district decision not to do so kind of that I observing rereading testimony larly standpoint, “is dis from the defendant’s al- emphasis places played, favored because of the it low them because the ”). Jury’s going distinguish testimony notes are now to indicate ... To that. from other because the former may credibility vividly demonstrate more is however, majority, The was influenced ignore precedent to our regarding audio by time, jury not what the heard a second testimony. tapes may Audio also reveal by they but what saw a second time. The credibility: voice, a majority replaying indicia of tremor the worried that the video- emphasize stammer, tape stutter, would children’s credi- a a pregnant pause, the or a bility deliberations, unduly during maj. the others, among may physical all reveal clues op. suggested at and the alter- particular to the a trustworthiness of procedure rereading videotape native the witness, none of are apparent which from a at n. Id. 1. I disagree transcript. cold While it is true undeniably analysis First, with this for two reasons. videotape a reveals even more such question satisfactory, the of a alternative indicia, degree, these are differences not procedure not is before us—we need to of kind. The ability incremental see to only procedure decide by whether the used expression body facial and does movements judge district the was an abuse of discre- justify not an artificial distinction between record, moreover, tion. The does not clear- videotapes purposes per- sound and for ly reporter reported reflect that the court mitting their jury. to the In this videotaped testimony or transcribed the case, moreover, parties stipulated the to played it initially, verbatim when was or the videotape. use the Under cir- these judge reporter’s that the district had the cumstances, videotape could be re- transcript notes or a available when the played Sims, for the jury. See 719 F.2d at request. made its The record reflects 379. only transcript was filed with the majority The also mentions that the dis- 5, 1984, long district court on October after judge trict allowed the view the judgment August was entered on Thus, videotape without reviewing I do introducto- not believe that we can find it an ry part tape. request abuse of A judge discretion for a district in a not view reporter’s to have abridged notes or more transcript fashion was declined. The if he not have points had notes or tran- majority no prejudice from these script readily available. rulings, I have found none in the may permit record. district court transcript Even if such or notes were portions of certain to be reread. available, however, I disagree would with King, See F.2d 850. It is re- not majority for a impor second and more quired particular to reread all of a witness’ majority tant reason. The holds that video testimony. Four other arguments raised tapes “unique” are replayed and cannot be by against replaying credibility taped videotape, when the witness is key by majority mentioned contrary issue. This are all result to both either logic precedent. unobjected our We unmeritorious or upheld to in dis- the replaying tapes trict audio court. upon request. United States v. Pu disagree I also with majority’s con- chi, Cir.), F.2d cert. de clusion that the district his abused

nied, 30 L.Ed.2d he expert discretion because allowed testi- Sims, See States v. 719 mony to improperly buttress (11th Cir.1983) curiam) (per credibility. experts, each of whom had (district court's audiotaped testi children, examined the testified — mony upheld), U.S. —, children were able to differentiate between falsehood, truth and reality and between (Sims); 753(b) (“proceed 28 U.S.C. § cf. fantasy. ing[s] ... shall be recorded verbatim shorthand, means, mechanical In majori- electronic each cases which the recording, any sound ty relies, or other method actually testified as to particular witness should have whether v. Awk

been believed. See United States BANK, Plaintiff-Appellee, PUBALI ard, 597 F.2d cert. de v. nied, 444 BANK, CITY NATIONAL the Aristos (1979); v. United States Bar McGuire, Group, Margo Jack A. nard, (9th Cir.1973), Svikhart, Defendants, denied, 416 U.S. (1974); L.Ed.2d United States City Bank, National Amaral, (9th Cir.1973). Defendant-Appellant. case, experts In this testified BANK, Plaintiff-Appellee, PUBALI capable telling were the children opine they did not as to whether or truth — actually not the children had done so. GROUP, The ARISTOS knowing The difference between that a wit Defendant-Appellant. concluding ness can tell the truth and 84-5912, Nos. 84-5938. Thus, he did so is fundamental. was free to or disbelieve the chil believe Appeals, United States Court of testimony, my judgment, dren’s Ninth Circuit. expert testimony helped hin neither nor Argued and Submitted dered determination. April 1985. Moreover, the fact that such Aug. Decided normally presence is taken outside the compe- when the determines testify require a tence to does not new

trial. The of the evidence children’s com-

petency merely part a small

expert testimony objection to which no is being Although might

now raised. I objection

sustained an to this evidence had judge, light

I been the district

facts of this case and the lack of

testimony tending to make the children believable,

more or less I cannot conclude

that its admission was an abuse of discre-

tion.

Finally, majority’s conclusion that jury’s request to see the doctors’ re- suggests emphasis

ports undue on credibili-

ty pure speculation. reports These con-

tained evidence other than that related to

credibility. reasons, foregoing I

For the would af-

firm Binder’s conviction.

Case Details

Case Name: United States v. Mark Kevin Binder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 22, 1985

Citation: 769 F.2d 595

Docket Number: 84-1249

Court Abbreviation: 9th Cir.