U.S. v. Rosales

• Decision Date: 09 March 1994
• Docket Number: No. 92-1732,92-1732
• Citation: 19 F.3d 763
• Parties: 40 Fed. R. Evid. Serv. 701 UNITED STATES, Appellee, v. Roberto ROSALES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 763

19 F.3d 763

40 Fed. R. Evid. Serv. 701

UNITED STATES, Appellee, v. Roberto ROSALES, Defendant, Appellant.

No. 92-1732.

United States Court of Appeals, First Circuit.

Heard March 9, 1994.

Decided March 31, 1994.

Lydia Lizarribar-Masini, Hato Rey, PR, for appellant.

Miguel A. Pereira, Asst. U.S. Atty., Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant Roberto Rosales appeals his conviction for abusive sexual contact in violation of 18 U.S.C. Sec. 2244(a)(1). ¹ He argues that the district court abused its discretion by admitting explanatory expert witness testimony, and that remarks contained in the prosecutor's closing argument deprived him of a fair trial. In addition, defendant challenges his sentence on the ground that the district court's upward departure from the Sentencing Guidelines was unreasonable. We affirm defendant's conviction, but vacate his sentence and remand the case for resentencing.

I. BACKGROUND

Defendant is a former elementary school teacher at Antilles Elementary School, located Each victim was a student of defendant for one school year, and all three testified that numerous incidents of sexual contact occurred throughout their time in the third grade. The government also presented the expert testimony of Dr. Nancy Slicner, a child psychologist, who testified about the general behavioral characteristics exhibited by victims of child sexual abuse.

                at Fort Buchanan, Puerto Rico.  The school is administered by the United States Navy.  Complaints of inappropriate touching led to an investigation of defendant, which resulted in an indictment charging him with six counts of abusive sexual contact involving three minor victims. 2  The charges arose from allegations that defendant had touched, kissed and rubbed against three of his former students
                

The jury found defendant guilty as charged. The trial judge sentenced defendant to 120 months imprisonment on each count, with the sentences to run concurrently. This appeal ensued.

II. DISCUSSION

A. Expert Testimony

Defendant first argues that the district court erroneously admitted the expert testimony of Dr. Slicner, a child psychologist who testified for the government. More precisely, defendant argues that the expert testimony should have been excluded because it improperly bolstered the testimony of the minor victims, and therefore its probative value was outweighed by its prejudicial effect. At trial, however, no objection was made to the admissibility of Dr. Slicner's testimony. Therefore, any error in the admission of the evidence was not preserved for appeal. See United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993); United States v. Serrano, 870 F.2d 1, 10 n. 9 (1st Cir.1989); see also Fed.R.Evid. 103(a)(1). Our standard of review under the circumstances is "plain error," see United States v. Figueroa, 976 F.2d 1446, 1453 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1346, 122 L.Ed.2d 728 (1993), and we will reverse only if the error " 'seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceeding[ ].' " United States v. Geer, 923 F.2d 892, 896 (1st Cir.1991) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (internal quotation marks and citation omitted)); see United States v. Olivio-Infante, 938 F.2d 1406, 1411 (1st Cir.1991) (under "plain error" review we will reverse only where a miscarriage of justice has occurred).

Defendant focuses his argument on Dr. Slicner's testimony that the way in which the minor victims discussed the incidents of sexual abuse with her was consistent with the manner generally exhibited by children who have been sexually abused or molested. Dr. Slicner explained that children generally "tend to be reluctant, they tend to be embarrassed, uncomfortable, ashamed of what happened. They're very uncomfortable giving details. I see a lot of that. And I saw that in these children."

Defendant relies on the Ninth Circuit's decision in United States v. Binder, 769 F.2d 595 (9th Cir.1985), where the court held that the district court erroneously admitted expert testimony addressed directly to the credibility of the abused children. The court found reversible error because,

"[t]he testimony of the experts ... was not limited to references to psychological literature or experience or to a discussion of a class of victims generally. Rather the experts testified that these particular children in this particular case could be believed. The jury in effect was impermissibly being asked to accept an expert's determination that these particular witnesses were truthful."

United States v. Antone, 981 F.2d 1059, 1062 (9th Cir.1992) (quoting Binder, 769 F.2d at 602). According to the court, the effect of the experts' testimony was to "bolster the children's story and to usurp the jury's fact-finding function." Id. In Binder, however, the court conducted a "harmless error" review, a standard far less demanding than that of "plain error." ³

Although trial judges are afforded significant leeway in determining whether otherwise admissible evidence is unfairly prejudicial under Fed.R.Evid. 403, see United States v. Spinosa, 982 F.2d 620, 628-29 (1st Cir.1992), we have recognized that "proffered expert testimony [c]ould create a substantial danger of undue prejudice ... because of its aura of special reliability and trustworthiness." United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979) (collecting cases); accord United States v. Boney, 977 F.2d 624, 631 (D.C.Cir.1992).

We agree with defendant that Dr. Slicner's testimony sent an implicit message to the jury that the children had testified truthfully, and this might therefore have interfered with the jury's function as the sole assessor of witness credibility. But, even assuming (without deciding) that the district court improperly calibrated its scales in balancing the probative value of this testimony against its prejudice to defendant, ⁴ any error was not "plain."

Our conclusion is based on two factors. First, defendant offered the testimony of its own expert, a child psychiatrist, who sought to undermine the credibility of Dr. Slicner. According to defendant's expert, the interviews conducted by Dr. Slicner of the children were too short to allow Dr. Slicner to assess their stories accurately. In addition, defendant's expert stated that the children's trial testimony, which she listened to attentively, was not consistent with testimony that one would expect from victims of child abuse. Second, the district court instructed the jury as follows:

During the trial you heard the testimony ... of Dr. Nancy Slicner who was presented by the government ... [a]nd we also heard the testimony of Dr. Martinez Lugo presented by the defendant.... If scientific or technical or other specialized knowledge may assist[ ] the juror in understand[ing] the evidence or determining facts in issue, a witness qualified as an expert ... may testify before the jury and state an opinion concerning such matters. Now merely because an expert witness has expressed an opinion does not mean, however, that you as jurors must accept this opinion.

The same as with any other witness. It is up to you to decide whether you believe the testimony of the expert and choose to rely upon it.

Trial Transcript, Vol. XIV at pp. 864-65 (emphasis added).

Not only was the jury presented with expert testimony directly contradicting the objectionable testimony offered by Dr. Slicner, but, the court expressly instructed the jurors that they were free to reject the opinions offered by the experts. Under the circumstances, we are not persuaded that Dr. Slicner's testimony was so prejudicial to defendant "as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." Geer, 923 F.2d at 897 (internal quotation marks and citation omitted).

B. Improper Argument

Defendant next contends that comments by the prosecutor to the jury during closing arguments deprived him of a fair trial. According to defendant, the prosecutor impermissibly vouched for the credibility of the government's witnesses in his response to defense counsel's argument that the FBI had fabricated evidence. The prosecutor stated:

Then they are also implying here, the defense is implying that there is some kind of conspiracy, that the FBI wanted to fabricate a case against Mr. Rosales, a school teacher at Antilles Elementary School. Like the FBI would have a special interest in this man. But for you to believe that story, you [w]ould also have to believe that the United States, Mr. Pereira [the other AUSA] and myself are part of that conspiracy. And that we would blend [sic] ourselves to do something such as improper and unethical conduct.

Defense counsel objected to this remark. The court sustained the objection, and warned the prosecutor that "[t]he evidence has to do with the participation of the FBI agents [in gathering evidence]," and that he should not go beyond the evidence. No curative instruction was requested by the defense, and none was given. Moreover, defendant did not move for a mistrial.

When a prosecutor places the credibility of counsel at issue, the advantage lies solidly with the government, and thus, prosecutors are prohibited from doing so. See United States v. Cresta, 825 F.2d 538, 555 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); see also United States v. Nickens, 955 F.2d 112, 121 (1st Cir.) (prosecutor may not express personal assurances about conclusions to be drawn from the evidence), cert. denied, --- U.S. ----, 113 S.Ct. 108, 121 L.Ed.2d 66...