People of Territory of Guam v. Shymanovitz

• Citation: 157 F.3d 1154
• Decision Date: 14 October 1998
• Docket Number: No. 96-10467,96-10467
• Parties: 98 Cal. Daily Op. Serv. 6769, 98 Daily Journal D.A.R. 9403 PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. John Benjamin SHYMANOVITZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1154

157 F.3d 1154

98 Cal. Daily Op. Serv. 6769, 98 Daily Journal

D.A.R. 9403

PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. John Benjamin SHYMANOVITZ, Defendant-Appellant.

No. 96-10467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1997.

Decided Aug. 31, 1998.

As amended Oct. 14, 1998.

David J. Highsmith, Highsmith & O'Mallan, Agana, Guam, for Defendant-Appellant.

David M. Moore, Assistant Attorney General, Agana, Guam, for Plaintiff-Appellee.

Appeal from the Appellate Division of the District Court of Guam; Alfred T. Goodwin, Circuit Judge, Alex R. Munson and John S. Unpingco, District Judges, Presiding. D.C. No. CR-95-00181A, S.C. CF0288-93/CF0078-94.

Before: REINHARDT, LEAVY, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge:

In this case we consider whether the prosecution may present testimony regarding the contents of sexually explicit gay adult magazines that are found in the residence of a defendant who is being tried on charges of unlawful sexual activity with minors. John Benjamin Shymanovitz appeals his conviction of multiple counts of criminal sexual conduct involving children, assault, and child abuse, on the ground that his trial was tainted by the admission of such testimony, as well as by the admission of the actual texts of two of the articles. Because we agree that the admission of this evidence constituted prejudicial error, we reverse the convictions.

BACKGROUND

Shymanovitz was a middle-school guidance counselor. He began taking a group of boys who attended the school on outings, such as hiking and camping trips, and sometimes had them sleep over at his home. Shymanovitz was charged with sexually and physically abusing seven of the boys while they were under his supervision. Several months later, he was charged with similar offenses relating to four more boys. The two indictments were then joined.

Prior to trial, the government filed a motion in limine requesting permission to introduce into evidence two articles from sexually explicit magazines found in Shymanovitz's residence, on the ground that they were relevant to establishing Shymanovitz's intent to commit the offenses. The court deferred ruling on the motion but at trial permitted a police officer, Winnie Blas, to testify that at Shymanovitz's house she seized, among other things, the following: condoms, a box of surgical gloves, a tube of K-Y Jelly, some children's underwear, a calendar, and six sexually-explicit magazines. Of the six magazines, four were entitled "Stroke"; one was entitled "After Midnight"; and one was entitled "Playboy." Officer Blas testified in great detail, over defense counsel's objections, as to the contents of the four issues of "Stroke"; she told the jury that they contained photos of men masturbating; performing auto-fellatio; ejaculating; using sex toys; wearing "leather equipment"; paddling one another; and having oral and anal sex. She also described two articles from the "Stroke" magazines, which had been the subject of the motion in limine. The articles consisted of presumably fictional tales and described two couples engaging in sexual conduct: the first, a father and son; the second, a priest and a young boy. ¹ The two articles, the K-Y Jelly, and a page from the calendar were entered directly into evidence.

During her initial closing argument, the prosecutor vigorously argued to the jury that the articles demonstrated that Shymanovitz intentionally engaged in the conduct of which he was accused:

And the acts that are portrayed in that article are acts that, if you look at what the Defendant himself has done, or what he is charged with, that it goes to his knowledge that he's aware of these kinds of facts, that it goes to his intent to engage in these kinds of acts, that it goes to his motivation to get involved in these types of acts.....

.... How does it all go fit in? Again, members of the Jury, it goes to the same thing, that this Defendant knows about these types of facts, that this Defendant was motivated to perform these types of acts.

(Emphases added). She recounted the testimony about the content of the "Stroke" magazines in great detail:

[Officer Blas] talked to you about these magazines. She was asked to describe the contents of these magazines. She told you there were a total of six magazines, four of which were entitled "Stroke," S-T-R-O-K-E, is how she spelled it. She told you about those magazines. She said there was also one "Playboy" and one "After Midnight" magazine. Now in the "Stroke" magazine, she testified that those magazines contained photographs of men ejaculating. When we asked her, "Well, 'ejaculating,' what do you mean?" "Semen coming out of their penis." She talked to you about there are men masturbating, men with men, having oral sex, and anal sex, men's penis being inserted into the anus of another male individual, or an object being inserted into the male anus. She said that it also had photographs of--that depicted the use of mechanisms, and when she was asked, "What do you mean by 'mechanisms,' " she said, "Well, other objects besides a penis and a finger, such as dildos."

"Well, what are dildos?"

"They're shaped like a penis, rubber-like instrument, dome-like top."

She talked about balls on a string; that they're inserted into the anal cavity, and they're pulled out one by one. She also talked about paddles being used on the butt, and so she testified to that. She talked about leather clothing, ja- -- people wearing jackets and pants with openings on the penis and the anus, or anal area.

Near the end of her initial closing, the prosecutor emphasized that Shymanovitz and his female roommate were merely friends but not engaged.

Finally, in her rebuttal argument, the prosecutor returned to her theme:

[D]on't let the fact that these magazines were found in his possession fool you as not being important because I told you what the importance was of those magazines. It's the acts that are depicted in the magazines that Officer [Blas] testified to. The acts--the fellatio, the anal intercourse, the touching--the acts that she described to you are important. That's why it's relevant, because it does go to the Defendant's intent, his motivation; his claim that he doesn't do anything or that he doesn't have any knowledge that certain things might be illegal. The articles are important because they were found in those magazines that were in his possession. Those magazine articles said on the very top how it's illegal to have sex with children.... So, it is important and it goes to his intent and motivation.

Aside from the evidence at issue here, the government's case consisted principally of the alleged victims' testimony. Shymanovitz, however, denied any sexual contact with the minors. His counsel argued that the boys and some of the parents had concocted the allegations against him for a number of reasons. He pointed to the testimony of two of the boys who had testified before the grand jury that Shymanovitz abused them but then testified at trial that they had made up the allegations.

The trial lasted three weeks. On the fourth day of deliberations, after the jury indicated it could not reach a verdict, the trial judge read it a modified Allen charge. On the next day of deliberations, Shymanovitz was convicted on twenty-seven counts and acquitted on eight. He was sentenced to four consecutive terms of life imprisonment for first degree criminal sexual conduct, plus twenty-one years for his convictions on second,

third, and fourth degree criminal sexual conduct.

DISCUSSION

Shymanovitz contends that the district court abused its discretion when it permitted the prosecution to adduce oral testimony regarding the contents of the "Stroke" magazines that were seized from his house and to introduce into evidence the texts of the two "Stroke" articles. ² He further argues that the government's only purpose in doing so was to prejudice the jury by suggesting that he was a homosexual.

We first note that none of the explanations the government proffered during closing arguments for offering the evidence regarding the magazines or introducing the articles is plausible. Although the prosecutor argued primarily that the reading materials in his home proved that Shymanovitz knew that certain forms of sexual conduct were illegal, the defendant never testified at trial that he believed sexual conduct with minors to be legal. Nor was there testimony to indicate that he somehow lacked knowledge of or familiarity with fellatio, anal intercourse, or other general aspects of homosexual sex. Moreover, neither knowledge of the illegality of the conduct of which he was accused nor knowledge of the nature of the specific acts identified by the prosecutor constituted an element of the offense. More important, such knowledge would in no way tend to prove his guilt on any of the charges brought against him. Accordingly, it is highly unlikely that the government introduced the magazines to address the issues it argued they were relevant to during the prosecutor's closing arguments. In any event, the government no longer pursues these justifications on appeal. ³

The government now contends only that the introduction of the challenged evidence was proper under 6 Guam Code Ann. § 404(b) in order to show that Shymanovitz "intentionally engaged in sexual contact for the purpose of sexual arousal or gratification." With one procedural exception that is not relevant here, Guam's Section 404(b) and Rule 404(b) of the Federal Rules of Evidence are identical and must be construed identically. ⁴ We will next carefully examine the government's 404(b) argument.

There were two categories of charges of sexual misconduct in this case: those involving "sexual penetration," 9 Guam Code Ann. §§ 25.15 & 25.25 (West 1996), and those involving "sexual contact," 9 Guam Code Ann. §§ 25.20 & 25.30 (West 1996). The sexual penetration charges simply...