U.S. v. Gauvin, s. 97-2328

• Decision Date: 28 April 1999
• Docket Number: 97-2363,Nos. 97-2328,s. 97-2328
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ryan GAUVIN, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 798

173 F.3d 798

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ryan GAUVIN, Defendant-Appellant-Cross-Appellee.

Nos. 97-2328, 97-2363.

United States Court of Appeals Tenth Circuit.

April 28, 1999.

Judith A. Rosenstein, Assistant Federal Public Defender, for Defendant-Appellant-Cross-Appellee.

Kathleen Bliss, Assistant United States Attorney, for Plaintiff-Appellee-Cross-Appellant.

Before PORFILIO, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Mr. Gauvin was convicted by a jury for assault with a dangerous weapon in Indian Country, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and assault on a federal officer, in violation of 18 U.S.C. § 111(b). Mr. Gauvin made a motion for judgment of acquittal or alternatively for a new trial. The motion was denied and Mr. Gauvin was sentenced to 37 months in prison followed by three years of supervised release. The sentence reflects a downward adjustment in the sentencing guidelines for acceptance of responsibility and a departure for exceptional family circumstances.

Mr. Gauvin appeals the conviction, and the government cross-appeals the sentencing. We have jurisdiction to hear both appeals under 28 U.S.C. § 1291. We affirm the district court on all matters.

I.

Mr. Gauvin was driving his Ford pickup at 1:15 a.m., drunk. Officer Sandoval, of the New Mexico State Police, noticed his vehicle swerving between lanes on the highway. She engaged her lights and sirens to stop the driver.

Mr. Gauvin accelerated. Officer Sandoval tried to maneuver beside Mr. Gauvin in the left lane. Each time she attempted this he swerved his truck left, forcing her to decelerate to avoid collision. Four miles later, Deputy Sheriff Montoya, of McKinley County, observed the chase and joined in.

Officer Sandoval testified that somewhere in the next few miles, where the road had changed to an undivided two lanes, she saw Mr. Gauvin edge into the opposing lane forcing two oncoming vehicles to swerve into the breakdown lane to avoid his truck. She fired her gun at Mr. Gauvin's rear tire attempting to disable his vehicle. She missed.

Four miles after Sheriff Montoya entered the chase, the road ran into Navajo Nation Indian Reservation. Two Navajo police officers there joined the pursuit. One of them, Officer Redhouse, took the front position ahead of Officer Sandoval. Every time Officer Redhouse tried to get beside Mr. Gauvin, Mr. Gauvin veered into the lane, thwarting the attempt. In one of these attempts to pass, the two vehicles collided, and the truck and Officer Redhouse's car flipped into a ditch. Fortunately, Officer Redhouse was not seriously injured. Mr. Gauvin was treated at a hospital and arrested for assault with a deadly weapon and assault on a federal officer.

Mr. Gauvin appeals his conviction on five grounds: (1) the district court's exclusion of specific testimony offered by Mr. Gauvin's witness was an abuse of discretion; (2) the district court's admission of testimony by government witnesses regarding the credibility of other witnesses was an abuse of discretion; (3) the district court's admonishment of a government witness to answer the defense counsel's question was plain error; (4) the prosecutor's remarks in the closing argument amounted to plain error; and (5) his conviction was based on facts and a theory of the case not presented to the grand jury in violation of the Fifth Amendment. Holding that the district court did not err, and that Mr. Gauvin was convicted on facts and a theory presented to the grand jury, we affirm the conviction.

The government cross-appeals challenging the downward adjustment and departure reflected in the thirty-seven month sentence. Unable to determine that the court abused its discretion in sentencing, we affirm the district court's adjustment and departure.

II.

A. Mr. Gauvin's Appeals from the Conviction.

1. The district court did not err in excluding testimony, and any error would be harmless.

In response to police reports on the accident, Mr. Gauvin sought to introduce testimony by Mr. Welch, a teacher at the New Mexico Police Academy, that New Mexico police officers are trained that they should never change their reports. Mr. Gauvin wished to challenge the validity of the police reports, which indicated Mr. Gauvin had caused the collision. Mr. Gauvin's accident reconstruction experts had suggested the accident was most likely caused by Officer Redhouse: Mr. Welch's testimony was thus intended to impeach the continued reliability of the police reports thus bolstering the alternate version of events provided by Mr. Gauvin's accident experts. The district court excluded the evidence upon the prosecution's objections for relevance and that admission would constitute unfair surprise in violation of Federal Rule of Criminal Procedure 16. We review a district court's exclusion of evidence for abuse of discretion, Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995), and affirm.

Mr. Gauvin's accident reconstruction experts had testified that the accident was probably not caused by Mr. Gauvin slamming into Officer Redhouse's car. Among the evidence contrary to their conclusion were the police reports. Mr. Gauvin sought to discredit the reports, by establishing that no matter how clear it became to an officer during trial that his report might be in error, some unofficial policy instructed the officer not to alter his report. The prosecution objected to the admission of Mr. Welch's testimony both on relevance grounds and as unfair surprise under Federal Rule of Criminal Procedure 16. The district court excluded the testimony but from the transcript it is unclear whether it did so on the relevance objection or the Rule 16 objection.

The testimony would have been relevant. Neither 18 U.S.C. § 111 nor 18 U.S.C. § 113 define assault. However, "where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning." United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957). Assault is traditionally defined as "an attempted battery" or as "placing another in reasonable apprehension of a battery." See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 7.16 (1986). This circuit adopted this definition when interpreting another federal assault statute. See U.S. v. Calderon, 655 F.2d 1037, 1038 (10th Cir.1981).

In light of that definition, Mr. Gauvin's guilt could be established either by showing he caused the crash, or by showing he swerved his car in a manner placing the officers in reasonable apprehension of battery. Therefore, Mr. Gauvin's defense necessitated (among other things) two showings: (1) he did not cause the accident, and (2) he did not swerve toward Officer Redhouse's car. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The police reports indicate that Mr. Gauvin caused the accident. Mr. Welch's testimony would have challenged the continued validity of the police reports, thus weakening the evidence indicating Mr. Gauvin had caused the accident. Whether Mr. Gauvin caused the accident is not dispositive of, but is relevant to determining, whether Mr. Gauvin is guilty of assault. The evidence should not have been excluded on the relevance objection.

As to the second objection, Rule 16(b)(1)(C) requires disclosure in some cases of expert testimony at the discovery phase. In response to the Rule 16 objection, Mr. Gauvin argues that the testimony is based on experience, not expertise. This argument ignores the breadth of the category "expert" under both the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. Federal Rule of Evidence 702 is "broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the 'scientific' and 'technical' but extend to all 'specialized' knowledge." Fed.R.Evid. 702 advisory committee notes. The advisory committee notes to Rule 16 state that the type of expert testimony captured by the rule is broadly construed in line with the broad definition in Federal Rule of Evidence 702. See Fed.R.Crim.P. 16, advisory committee notes (1993 Amendment). Mr. Welch's testimony as to the existence of an unofficial policy of inflexibility, based on his work as a teacher at the Police Academy, qualifies as "expert" under 702 and is subject to the limitations under Rule 16.

Finally, even were this testimony improperly excluded, the error would have been harmless. Mr. Gauvin could have been convicted on the basis of his swerving toward Officer Redhouse's car. The evidence is sufficient to uphold such a conviction and therefore we would not find prejudice in this alleged error.

2. The district court did not err in admitting challenged testimony.

Mr. Gauvin alleges error in the district court's admission of testimony by Officer Doty that, in making his reports at the scene of the accident, he interviews witnesses, including "impartial witnesses" and police officers. Rec. vol. IV, at 307. Mr. Gauvin also finds error in the admission of testimony by Officer Segotta, Officer Sandoval's supervisor, that he found nothing suggesting to him an improper motive in Officer Sandoval's discharging her firearm.

The government argues, contrary to Mr. Gauvin, that these objections were not properly preserved and thus we should review only for plain error. We need not resolve that contention, however, because even reviewed for abuse of discretion, as the decision would be were the objection preserved, the decision was not error.

Mr. Gauvin first objects to Officer Doty's testimony--specifically his response to the question, "why you have to interview witnesses," in which he stated, "We consider different types of witnesses. ...