UNITED STATES of America, Plaintiff-Appellee, v. Ivan Bennett WILLIS, Defendant-Appellant.
No. 15-6102
United States Court of Appeals, Tenth Circuit.
Filed June 21, 2016
The district court‘s entry of summary judgment is accordingly AFFIRMED.
K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, and Rozia McKinney-Foster, Assistant United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
I. INTRODUCTION
Appellant Ivan Bennett Willis was charged with aggravated sexual abuse committed in Indian country. Mr. Willis admitted he had sex with a seventeen-year-old acquaintance, K.M., and that the events occurred in Indian country. But Mr. Willis maintained that K.M. consented to the encounter. Thus, the only issue at trial was whether Mr. Willis used force against K.M. After a two-day trial, the jury returned a guilty verdict.
Mr. Willis now appeals, challenging multiple evidentiary rulings by the district court. Exercising jurisdiction pursuant to
II. BACKGROUND
A. Factual History
Throughout the summer and fall of 2013, K.M. lived with her cousin, Jamee Black, and Ms. Black‘s boyfriend, Wesley Bear. On the evening of September 22, 2013, K.M. was babysitting the couple‘s two children while Mr. Bear and Ms. Black were working. Mr. Bear‘s sister, Christi Bear, came to the Bear/Black home with her boyfriend, Mr. Willis. Ms. Bear and Mr. Willis left their son with K.M. while Mr. Willis drove Ms. Bear to work.
When Mr. Willis returned, instead of picking up his son and leaving, he began making sexual advances toward K.M. After K.M. rejected Mr. Willis‘s suggestion that they have sex, Mr. Willis took her into the bathroom. Despite K.M.‘s continued objections, Mr. Willis pulled down her shorts and underwear, removed his pants, pressed his body against hers, and tried to make her “touch his private area.” Although K.M. continued to say no, Mr. Willis lifted her onto the sink and tried to penetrate her. While continuing to resist, K.M. slid off the sink and tried to pull up her shorts, but Mr. Willis pushed her. K.M. stumbled and caught herself on the toilet, and Mr. Willis penetrated her from behind. K.M. stopped resisting at this point because she was scared and “didn‘t know what to do.”
Mr. Willis left the house but later returned “to check on [K.M.] because he knew [she] was crying.” K.M. testified that Mr. Willis “asked if it felt like he forced [her],” and she said yes.
K.M. called Ms. Black and asked if someone else could watch the children. Ms. Black then called Mr. Bear, who returned home to check on K.M. When Mr. Bear arrived, he found K.M. crying and asked what was wrong. Before K.M. answered, Mr. Bear‘s three-year-old daughter said,
B. Procedural History
On November 12, 2013, a federal grand jury returned a single-count indictment alleging that Mr. Willis “knowingly engaged and attempted to engage in a sexual act with [K.M.], by using force.”
In a pretrial motion, the government gave notice of its intent to offer evidence pursuant to
The parties tried the case to a jury in the United States District Court for the Western District of Oklahoma. The jury found Mr. Willis guilty. He now appeals.
III. DISCUSSION
On appeal, Mr. Willis challenges the district court‘s evidentiary rulings, described above. He further asserts that an investigating agent improperly vouched for K.M.‘s credibility when he testified at trial. Finally, Mr. Willis argues he is entitled to a new trial based on cumulative error. We address each of these issues in turn.
A. Evidence of Prior Sexual Assaults
Mr. Willis first argues the district court erred by admitting evidence of the two prior sexual assaults. We review the admission of evidence for abuse of discretion, United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008), and will not reverse if the district court‘s ruling “falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical,” United States v. Sturm, 673 F.3d 1274, 1286 (10th Cir. 2012) (internal quotation marks omitted).
In addition, events before and during trial may determine the scope of our review. “We have stated often the general rule that in evaluating the correctness of the district court‘s rulings, the appellate court may consider the entire record developed from the trial even though such evidence may not have been presented during the suppression hearing,” but we have applied the rule in practice “only in cases in which the trial evidence supported the district court‘s earlier ruling at the suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993) (internal quotation marks and brackets omitted). “Because ‘the district court should have the first opportunity to correct its mistake,’ we ordinarily ‘will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.‘” United States v. Bass, 661 F.3d 1299, 1303 (10th Cir. 2011) (quoting Parra, 2 F.3d at 1065). “The district court may consider trial testimony if the defendant renews the suppression motion at trial, but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling.” Id. (citation omitted). In Bass, the defendant “renewed his motion [to suppress] twice at trial but the renewals were perfunctory” because the
Here, the district court held a pretrial evidentiary hearing before ruling on the admissibility of the prior-acts evidence. Specifically, the two women who claimed to be victims of the prior sexual assaults testified about the circumstances surrounding those events, and, based on their testimony, the district court admitted the evidence under
In criminal sexual-assault cases, a district court may “admit evidence that the defendant committed any other sexual assault.”
Although there is no dispute that Mr. Willis was accused of sexually assaulting K.M., Mr. Willis contends the other incidents did not rise to the level of sexual assault. And he asserts the evidence was not relevant. Moreover, even if the evidence were relevant and otherwise satisfied Rule 413‘s requirements, Mr. Willis argues the district court should have excluded the evidence under
1. Evidence of Other Sexual Assaults
At the pretrial evidentiary hearing, the district court first heard testimony from A.M.,1 a woman who dated Mr. Willis in middle school. A.M. testified that, in 2007, after they had stopped dating, she and Mr. Willis ran into each other at a basketball game. She voluntarily left the game with Mr. Willis and began “making out” with him in a dugout on the high school softball fields. According to A.M., she consented to the kissing but told Mr. Willis to stop when he touched her breasts, laid her down, and “got on top.” She testified that she told him repeatedly to stop and when he did not, she eventually hit or shoved him. Mr. Willis then stopped but “started laughing at [A.M.], and then he told [her] not to tell anybody.” On cross-examination, A.M. testified she could not remember whether she hit or pushed Mr. Willis. She also admitted that, in interviews right after the incident, she had told police that Mr. Willis had stopped after she said no
Mr. Willis argues this incident was “nothing more than a teenaged make-out session which was terminated when [A.M.] said so.” But, under
Although A.M. testified inconsistently about whether she had to physically push or hit Mr. Willis, if the factfinder believed her testimony, there was sufficient evidence to establish an offense under
At the pretrial evidentiary hearing, the district court also heard from A.N., a woman who testified that she and Mr. Willis grew up in the same neighborhood in Choctaw, Mississippi. In 2008, when Mr. Willis was sixteen and A.N. was fourteen or fifteen, Mr. Willis was at A.N.‘s house while A.N.‘s mother was drinking with a group of friends. Mr. Willis and A.N. also began drinking and, at some point, A.N. passed out. A.N. recalled sitting in the kitchen drinking, but her next memory was waking up in a bedroom as her mother banged on the door. As A.N. awoke, she felt “some pain in [her]” and felt someone on top of her. And when A.N.‘s mother turned on the lights, Mr. Willis stood up from the bed and A.N. saw that she and Mr. Willis were not wearing pants or underwear. A.N. reported the incident to a neighbor, who called the police. Mr. Willis was charged with rape but ultimately pled guilty to battery.
Mr. Willis argues there was no sexual assault because there was no evidence of lack of consent and no evidence of a sexual act because A.N. was unconscious. The district court construed the incident as conduct that would violate
2. Relevance
The district court must also make a threshold determination of relevance—“that is, the evidence must show both that the defendant had a particular propensity, and that the propensity it demonstrates has a bearing on the charged crime.” Guardia, 135 F.3d at 1332.
Here, whether Mr. Willis used force to overcome lack of consent was the only disputed issue at trial. And the evidence tended to show that, in each prior incident, Mr. Willis engaged in sexual activity where the other party either did not or could not consent. Thus, the prior-acts evidence demonstrated a propensity that was directly relevant to the only issue for the jury to decide.
3. Rule 403
Finally, the district court was required to decide whether the evidence was admissible under
When the district court made its pretrial decision, “[n]either party addresse[d] whether the government [could] obtain less prejudicial evidence.” The district court therefore did not weigh this factor but found the other factors weighed in favor of admission. First, as explained above, both A.M. and A.N. testified at the pretrial hearing, and their testimony supported a finding that each act occurred. And the material fact—whether Mr. Willis used force to overcome lack of consent—was the only issue and was hotly disputed. In considering the final factor, the probative value of the prior-acts evidence, the analysis
will depend on innumerable considerations, including the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of the prior acts, the presence or lack of intervening events, and the need for evidence beyond the testimony of the defendant and alleged victim.
Guardia, 135 F.3d at 1331 (citations omitted).
Here, the factors related to the probative value of the evidence weigh in favor of admission. First, the acts are quite similar. Each incident involved a girl in her mid- to late teens who was Mr. Willis‘s friend or acquaintance. In each situation, the events escalated from what could be considered harmless interaction to a situation of forced sexual activity. And in each instance, Mr. Willis disregarded the lack of consent of the female involved. Although the prior acts happened in 2007 and 2008 and thus there was a “five-year time lapse between the prior acts and the act charged,” the district court correctly concluded the lapse “does not negate [the prior acts‘] probative value.” Indeed, we have held “there is no time limit beyond which prior sex offenses by a defendant are inadmissible.” United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997). The five-year lapse here is not sufficiently long to undermine the probative value of the evidence. Moreover, there was no need for evidence beyond the testimony of A.M. and A.N. to establish the prior sexual assaults. Cf. Guardia, 135 F.3d at 1331-32 (affirming the exclusion of prior-acts evidence under
Mr. Willis argues the Rule 413 evidence was not sufficiently probative under
In sum, the district court analyzed the evidence presented at the evidentiary hearing, had the opportunity to assess the demeanor of the witnesses, and concluded the Rule 413 requirements were satisfied and any potential prejudice did not substantially outweigh the probative value of the evidence. This conclusion was not an abuse of discretion.
B. Juvenile Records
Mr. Willis also challenges the means by which the government obtained the prior-acts evidence. In an interview with two federal agents, Mr. Willis disclosed that, on two prior occasions, he had been accused of sexual offenses, both of which occurred while Mr. Willis a minor living in Mississippi. The agents investigated further by requesting Mr. Willis‘s records from the Choctaw Tribal Youth Court (the Tribal Court). And the Tribal Court released Mr. Willis‘s juvenile records to FBI Special Agent Scott Billings, who used the records to identify and contact A.M. and A.N.
Mr. Willis argues the records were available only because the Tribal Court failed to follow its expungement rules. In particular, Choctaw Youth Code § 11-3-35 mandates the destruction of juvenile records when a minor turns eighteen and has completed the terms of his probation. Because the Tribal Court failed to destroy Mr. Willis‘s records, he asserts “a Due Process interest in making sure that the Mississippi Band of Choctaw Indians follows its own unambiguous rules regarding the destruction of such records.”3
But we have previously rejected the argument that a statute requiring expungement creates a due process right preventing post-expungement disclosure of a defendant‘s criminal history. In Nilson v. Layton City, 45 F.3d 369, 371-72 (10th Cir. 1995), we recognized “that the right to privacy safeguards individuals from government disclosure of personal information,” but the protection does not apply to expunged criminal records because a defendant has no legitimate expectation of privacy related to such records. Id.; see also Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir. 1997) (“There is no constitutional basis for a ‘right to expungement.’ “); Duke v. White, 616 F.2d 955, 956 (6th Cir. 1980) (“The right to expungement of state records is not a federal constitutional right.“).
Mr. Willis urges us to apply a different rule to juvenile records, citing heightened privacy concerns applicable in juvenile cases. Here, however, we are not required to and do not decide whether Nilson applies to juvenile expungement. Even if we assume Mr. Willis had a due process right in having his juvenile records destroyed, without a showing of prejudice we would still affirm the district court‘s decision. See United States v. Caceres, 440 U.S. 741, 752-53 (1979) (concluding that IRS‘s failure to follow its own regulations did not constitute a due process violation absent a showing of prejudice resulting from reasonable reliance on compliance). Mr. Willis cannot make such a showing here.
Mr. Willis concedes he disclosed the earlier incidents and thereby gave the federal agents the necessary information to independently investigate the previous assaults and to identify witnesses, even without the use of his juvenile records. Although use of the records likely simplified the agents’ investigation, Mr. Willis cannot demonstrate prejudice resulting from the release of his juvenile records due to his own disclosure of the prior sexual encounters. Cf. United States v. Griffin, 48 F.3d 1147, 1150 (10th Cir. 1995) (holding the independent-source doctrine “permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality“). We therefore reject his due process argument.
C. Custodial Statements
Mr. Willis also asserts the district court should have granted his motion to suppress his statements to the federal agents, which he argues “were involuntary and illegally obtained.”4 We are not persuaded.
At the suppression hearing, BIA Special Agent Andrew Willey and FBI Special Agent Scott Billings testified about their interactions with Mr. Willis. Agent Willey testified that he began investigating K.M.‘s allegations on September 22 and contacted Agent Billings to assist. Both agents went to KCDC to interview Mr. Willis on September 25, 2013.
The agents then stayed with Mr. Willis for about thirty minutes, until correction officers returned. During this time, Agent Willey asked for, and Mr. Willis provided, routine personal information, including date of birth, social security number, height, weight, and place of birth. Agent Willey also explained the investigation might lead to charges different than those for which Mr. Willis had been arrested, and Mr. Willis asked if he would be appointed a public defender.
As the agents prepared to leave, Mr. Willis asked if it was too late to change his mind and to speak with them. The agents asked if he meant right then or after he talked to an attorney, and Mr. Willis “clarified... that he was talking about right at the moment.” Agent Billings reminded Mr. Willis of his Miranda rights by again having him read the waiver form and specifically informed Mr. Willis that “he was waiving his attorney and that he could stop talking at any time if he wanted to.” After Mr. Willis again read the waiver form, Agent Billings verbally confirmed, point by point, that Mr. Willis understood his rights. Mr. Willis signed the form before the agents asked any questions about K.M.‘s allegations. Both agents testified they did not use any physical or emotional pressure against Mr. Willis. Mr. Willis did not introduce any evidence to the contrary.
After signing the form, Mr. Willis gave a verbal statement to Agents Willey and Billings and then prepared a written statement while the agents were present. In total, the interview lasted about an hour and a half.5
After hearing this evidence, the district court orally denied the motion to suppress. It later issued a written order concluding that Mr. Willis spoke to Agents Willey and Billings after knowingly and voluntarily waiving his right to counsel and to remain silent.
Relying on Edwards v. Arizona, 451 U.S. 477 (1981), Mr. Willis contends the district court erred in reaching that conclusion. In Edwards, the Supreme Court held that if a defendant “expresse[s] his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484 (emphasis added). The Supreme Court has since instructed that, ”Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested,
Here, the agents ceased questioning Mr. Willis about K.M.‘s allegations as soon as he invoked his right to counsel. As the district court concluded, “there was no evidence even remotely suggesting coercive actions by law enforcement officers.” See United States v. Lopez, 437 F.3d 1059, 1064-65 (10th Cir. 2006). Although Agents Willey and Billings asked Mr. Willis for routine background information while waiting for correctional officers to return, such questions do not render Mr. Willis‘s statements involuntary. See United States v. Lara-Garcia, 478 F.3d 1231, 1235 n. 3 (10th Cir. 2007) (explaining that questions about identity and other personal information typically do not require Miranda warnings).
When the correctional officers arrived and the agents began to leave, it was Mr. Willis who resumed the conversation by indicating he had changed his mind and wanted to talk. Even then the agents asked Mr. Willis to clarify that he wanted to talk immediately, without first consulting counsel, and the agents again advised Mr. Willis of his Fifth Amendment rights. Under these facts, we agree with the district court that Mr. Willis knowingly and intelligently waived his right to counsel. Accordingly, we affirm the district court‘s denial of the motion to suppress.
D. Evidence of K.M.‘s Sexual Behavior
The district court also denied Mr. Willis‘s pretrial motion to admit evidence of K.M.‘s sexual behavior. We review this determination for abuse of discretion. United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008).
In sexual-offense cases, evidence of the victim‘s sexual behavior is generally inadmissible.
Mr. Willis asserts the district court erred in excluding evidence that K.M. had sex with her boyfriend at the Bear/Black residence before her encounter with Mr. Willis. Specifically, Mr. Willis moved to introduce the report from K.M.‘s sexual-assault examination, which showed that semen in K.M.‘s underwear matched DNA samples from both Mr. Willis and K.M.‘s boyfriend. According to Mr. Willis, this evidence established K.M.‘s motive to lie: she did not want her boyfriend to know she had sex with Mr. Willis, and she did not want Mr. Bear and Ms. Black to
Mr. Willis‘s argument fails for several reasons. First, this is not a case where the government sought to prove the charges against Mr. Willis by showing that physical evidence originated exclusively with him. Consequently, Mr. Willis‘s reliance on our decision in United States v. Begay, 937 F.2d 515 (10th Cir. 1991), is misplaced. There, we reversed the defendant‘s conviction and remanded for a new trial because the district court had excluded evidence of past sexual assaults against the child-victim that was directly relevant to the source of physical evidence. We concluded the evidence should have been admitted to fully explain the victim‘s physical injuries and to support the defense theory that the injuries were caused by a previous assailant rather than by the defendant, who denied having any sexual contact with the victim. Id. at 523, 526. The same rationale does not apply here because Mr. Willis admits he had sex with K.M. Thus, the government had no need to rely on the physical evidence to establish that fact.
This case is similar to United States v. Nez, where the defendant “did not dispute the act of intercourse nor his involvement therein.” 661 F.2d 1203, 1205 (10th Cir. 1981). And in both this case and Nez, “the tendered testimony regarding the victim‘s past sexual behavior did not encompass behavior with [the defendant].” Id. Under such circumstances, we held the district court properly excluded the evidence as irrelevant to the issue of consent. Id. at 1205-06. The same is true here. Evidence that K.M. had sex with another individual does not tend to make it more or less probable that K.M. consented to sex with Mr. Willis. Accordingly, that evidence was irrelevant to the only issue at trial. See
Moreover, Mr. Willis cannot show prejudice because he was able to present other evidence of K.M.‘s potential motive to lie. On cross-examination, K.M. admitted that Mr. Bear and Ms. Black would have been disappointed if they learned she had consensual sex with Mr. Willis. And Ms. Black confirmed K.M.‘s assumption, testifying she would be upset if she learned K.M. had engaged in consensual sex with Mr. Willis. Thus, Mr. Willis was able to introduce his defense theory to the jury even without the evidence of K.M.‘s prior sexual behavior. Under these circumstances, even if the district court erred in excluding the evidence—and it did not—the error was harmless.
E. Vouching
Mr. Willis also argues the district court allowed Agent Willey to improperly vouch for K.M.‘s credibility. Although we generally review evidentiary rulings for abuse of discretion, the government contends plain-error review is required because Mr. Willis‘s objections to Agent Willey‘s testimony were not sufficiently specific. See United States v. Taylor, 514 F.3d 1092, 1096 (10th Cir. 2008) (“[W]here a party seeks on appeal to raise an issue not squarely presented to the district court in order to allow it to exercise its judgment in the first instance[,] we traditionally review only for plain error.“).
Here, K.M. gave different accounts about whether Mr. Willis penetrated her during the assault: she initially reported to Officer Ortega that Mr. Willis had not penetrated her but later told Agent Willey that he had. When asked at trial about the inconsistency, Agent Willey explained that “sometimes sexual assault victims are just ashamed to report or state what has happened to them. Sometimes they‘re scared to do it. Sometimes they don‘t remember.” When the government
The government continued:
Q. [BY THE GOVERNMENT] Did it surprise you that her disclosure was different than it had previously been?
A. No.
Q. Did you believe her?
A. Yes.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
Q. [BY THE GOVERNMENT] Did you believe her?
A. Yes.
We agree with the government that Mr. Willis did not adequately bring the vouching issue to the district court‘s attention. Defense counsel first objected on the specific ground that Agent Willey had offered expert opinions about child witnesses and then simply stated “objection,” without explanation, when the government asked Agent Willey whether he believed K.M. Nowhere in the record did defense counsel assert that the questions elicited improper vouching. To the contrary, defense counsel asked Agent Willey to reiterate his testimony about K.M.‘s credibility. During cross-examination, defense counsel asked, “And you have stood before this jury today and vouched for her credibility; isn‘t that correct?” and Agent Willey responded, “I believe her.” Thus, Mr. Willis not only failed to state a specific objection, his own counsel reemphasized that Agent Willey believed K.M.
We therefore review for plain error, which requires Mr. Willis to establish (1) error, (2) that is plain, which (3) affects his substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Here, we resolve Mr. Willis‘s vouching argument on the basis that he has not shown that Agent Willey‘s testimony affected his substantial rights. To satisfy this requirement, a defendant must demonstrate a reasonable probability that the error influenced the outcome of the trial. United States v. Hinson, 585 F.3d 1328, 1338 (10th Cir. 2009). Mr. Willis has not made that showing here.
As discussed, there was no dispute that Mr. Willis penetrated K.M.; the only issue was consent. Thus, Agent Willey‘s testimony that he believed K.M. when she changed her initial statement and reported that penetration had occurred was not relevant to the only issue before the jury. And even considering Agent Willey‘s testimony more broadly as a comment on K.M.‘s overall credibility, Mr. Willis has not argued that there is a reasonable probability the jury would not have convicted him absent the testimony. Thus, even if improper vouching occurred, which is an issue we do not decide, any error was harmless.6
F. Cumulative Error
Finally, Mr. Willis claims that even if none of the alleged errors individually warrant reversal, the cumulative effect of the errors deprived him of a fair trial.
IV. CONCLUSION
For the above reasons, we AFFIRM the district court in all respects.
No. 15-9003
United States Court of Appeals, Tenth Circuit.
Filed June 22, 2016