U.S. v. Kennedy

Decision Date02 September 1983
Docket NumberNo. 81-1066,81-1066
Citation714 F.2d 968
Parties14 Fed. R. Evid. Serv. 82 UNITED STATES of America, Plaintiff-Appellee, v. Michael Edward KENNEDY, Defendant-Appellant. . Re
CourtU.S. Court of Appeals — Ninth Circuit

Thomas M. Coffin, Asst. U.S. Atty., argued, William H. Kennedy, U.S. Atty., Judith Feigin, Thomas M. Coffin, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

Juanita Brooks, Frank Vecchione, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before KENNEDY, POOLE, and NELSON, Circuit Judges.

KENNEDY, Circuit Judge:

Defendant Michael Kennedy appeals his conviction for rape and felony murder. The crime involved the rape and murder of a young Mexican woman at the United States Port of Entry at San Ysidro, California.

On Friday, November 23, 1979, Josephine Felix, a resident of Corcoran, California, drove to Tijuana, Mexico, for the purpose of smuggling her sister-in-law, Maria Lopez de Felix, into the United States. She hid Maria in the trunk of her car and headed for the Port of Entry at San Ysidro. When they got to the border, a customs inspector discovered Maria and turned the two women over to the immigration office for questioning. The two were photographed, fingerprinted, and put into separate cells at the New Customs Building. Around 1:30 a.m. on November 24 Maria was released. She was pointed toward a set of double doors behind which a corridor would take her back to Mexico.

Having passed through the double doors, Maria encountered Michael Kennedy, a Federal Protection Officer (FPO), who was just returning from the cafeteria. As Maria appeared lost and Kennedy did not know any Spanish, he escorted her over to Customs Inspector Clooney, who helped her find her way towards the corridor to Mexico. Kennedy claims that this was the last he saw of Maria.

On Monday, November 26, 1979, around 10:00 a.m., some thirty-three hours after Maria had been ordered back to Mexico, she was found murdered in an alleyway behind the Old Customs Building at the Port of Entry. She appeared to have been beaten, raped, and strangled. Her face and neck were badly bruised. Her clothing was in disarray: her dress was pulled over her midriff, her underwear was pulled down to her knees, exposing her genital area; a light blue shawl which she had been wearing the evening she disappeared was draped over her torso and was caked with dirt and debris.

Investigation disclosed that Maria had been murdered in the Old Customs Building. In the surrounding area, investigators discovered bits and pieces of Maria's gold chain, a tassel torn from her shawl, a slip of paper containing the address of Maria's aunt, and Maria's gold-plated religious medallion. Her shoes and purse were found hidden in the toilet tank of one of the adjoining cells. Investigators also came across several "Kool" brand cigarette butts and pieces of masking tape that appeared to have been left there by the killer.

Kennedy came to be suspected because he was one of the only two people on duty the night the victim had disappeared who possessed a key to the padlocked gate to the area where the murder occurred, and because he habitually smoked "Kool" brand cigarettes. On December 3, Kennedy was questioned about the events of November 25. He admitted to encountering Maria briefly just before directing her to inspector Clooney. Unlike Clooney, he placed that encounter around 2:00 a.m. After leaving Maria with Clooney, Kennedy said he went to the FPO booth along the corridor to Mexico, where he remained for some 20 to 30 minutes. FPO John Doe, who was on duty with Kennedy, however, testified that he was alone in the FPO booth during that very time period, and that he did not see Kennedy again until 5:30 a.m.

Kennedy was charged with murder, felony-murder, and rape. Following a thirteen day trial in June 1980, the jury was unable to reach a unanimous verdict on all counts. It acquitted Kennedy of the murder charge, but was divided as to the remaining charges. A second jury trial was held in August 1980 and again ended in mistrial. A third trial, forming the basis for this appeal, began on November 24, 1980. Kennedy this time was convicted on both of the remaining counts. He was sentenced to life imprisonment on each count, the sentences to run concurrently.

I. Sufficiency of the Evidence

Appellant argues that there was insufficient evidence to convict him of rape and felony murder. To demonstrate that the evidence is sufficient, we find it necessary to set forth here the principal elements of the Government's case and the refutations the defense offers. Although this is a close case, we conclude that the evidence presented, considered in the light most favorable to the Government, was sufficient to permit a jury rationally to conclude that appellant is guilty beyond a reasonable doubt. See United States v. Sims, 617 F.2d 1371, 1374 (9th Cir.1980); United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir.1969).

The evidence whose probative value is disputed consisted of the following:

Evidence of Intercourse. Vaginal smears taken from the victim's body disclosed the presence of semen. Appellant's expert testified that the low acid phosphatase level of the smears proves that the victim did not have intercourse within twenty-four hours of death. The Government presented three answers to this. First, the swabs used by appellant's expert to test for semen had thawed in the shipment. Such thawing would significantly lower the acid phosphatase level. In addition, the Government's expert pointed out that low levels of acid phosphatase were not incompatible with the occurrence of a recent act of intercourse. The acid phosphatase level was a function of many other variables. Finally, the Government's toxicologist submitted tests of his own that in fact revealed high levels of acid phosphatase. The jury could accept the Government's theory.

Appellant also challenged the results of a Government test showing that the person with whom the victim last had intercourse was, like appellant, a non-secreter (a male who does not secrete his blood type in semen). Only 20 percent of the male population has the non-secreter characteristic. (The defense's principal suspect, FPO Doe, in fact is a secreter.)

The defense expert argued that the extremely diluted nature of the tested semen--due to the passage of time, vaginal secretions, and the victim's involuntary urination at the time of death--could have prevented any identification of blood types. The Government gives three answers to the argument that the sample was diluted. First, it noted that appellant's expert witness was unable to tell how long the urine had been on the victim's fabric, so the dilution might not have occurred at the time of death. Second, tests done on semen taken from the victim's slip (upon which no diluting urine was found) also showed that the person with whom she had had intercourse was a non-secreter. Third, the Government claimed to have had a sufficient amount of undiluted semen to test. The resolution of these matters was properly for the jury, and it could accept the Government's theory.

Finally, appellant contends that the location of the semen on the victim's underwear indicates that she put her clothes on and walked around after sexual intercourse. This fact, appellant argues, is inconsistent with the Government's theory of how the rape and the murder occurred. The Government notes in reply that the semen on the panties could have been deposited in the course of the struggle preceding the rape, or indeed might stem from an earlier act of intercourse. The issue was one of fact for the jury.

Hair Identification Evidence. The defense contends that the Government's hair identification evidence was not probative. The evidence consisted of four head hairs removed from the victim's shawl and one pubic hair taken from the blanket in which the authorities had temporarily wrapped the body.

Appellant challenged the accuracy of hair identification in general. His expert contended that, at most, hairs fall within a similar range of characteristics, and that no identical matches are possible. The Government's expert testified that over the course of 50,000 to 60,000 examinations through his career, he was unable to distinguish between hairs taken from different individuals only 50 to 60 times, and that in this case he was quite certain that the hairs in question belonged to the defendant. The jury could choose to believe the Government's contention.

Adhesive Residue on Defendant's Pocket Knife. The Government put in evidence the defendant's pocket knife covered with adhesive tape residue. In order to gain access to the Old Customs Building, the killer would have had to cut through some tape tying together the gates that led to the building. The Government pointed out that adhesive residue on the knife seemed to be from a tape just long enough to hold together the two gates.

Appellant maintains that his father had used the knife while taping up some paneling in the family garage. Indeed, the adhesive on the two rolls of tape at the Kennedy home also matched the residue found on the tape. Appellant added that the adhesive residue might also have accumulated when he had originally taped the two gates together. Finally, appellant's expert presented photographic evidence to show that the width of the space between the two gates was narrower than the width of the adhesive residue on the appellant's knife.

Paint Particles on Defendant's Clothing. The Government submitted into evidence certain pieces of the defendant's clothing containing gray paint particles evidently stemming from the floor of the Old Customs Building where the rape had occurred. Appellant argued that he had not worn the suit on the night in question, and that the paint particles had accumulated on...

To continue reading

Request your trial
80 cases
  • U.S. v. Gwaltney
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 Junio 1986
    ...confusing or misleading as to require exclusion. Statistical evidence is not inadmissible per se. See, e.g., United States v. Kennedy, 714 F.2d 968, 971 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984); Scott v. Perini, 662 F.2d 428, 430 (6th Cir.1981), cer......
  • Cook v. Schriro
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Febrero 2008
    ...after arrest, defense counsel opened the door for the prosecutor to suggest contrary inferences."); see also United States v. Kennedy, 714 F.2d 968, 977 (9th Cir.1983) (allowing invited comment that defendant was "not like every other witness in the case" in response to defense counsel's In......
  • U.S. v. Olano
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 Agosto 1995
    ...v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994); United States v. Kennedy, 714 F.2d 968, 976 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984). We apply this standard to each of the incidents......
  • Rienhardt v. Shinn
    • United States
    • U.S. District Court — District of Arizona
    • 8 Noviembre 2021
    ...conviction, and where there is evidence that could have supported acquittal.” Lincoln, 807 F.2d at 809 (quoting United States v. Kennedy, 714 F.2d 968, 976 (9th Cir. 1983)); Beardslee, 358 F.3d at 586. Rienhardt argues that the prosecutor's comment, while not extensive, “went to a critical ......
  • Request a trial to view additional results
6 books & journal articles
  • Trial Proceedings and Motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • 31 Julio 2016
    ...1983). The trial court has no obligation to determine admissibility of hearsay evidence in a pretrial hearing. United States v. Kennedy, 714 F.2d 968 (9th Cir. 1983). The trial court may delay ruling on admissibility of impeachment evidence until the accused has testified. United States v. ......
  • Trial proceedings and motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • 31 Julio 2017
    ...1983). The trial court has no obligation to determine admissibility of hearsay evidence in a pretrial hearing. United States v. Kennedy, 714 F.2d 968 (9th Cir. 1983). The trial court may delay ruling on admissibility of impeachment evidence until the accused has testiied. United States v. F......
  • Trial Proceedings and Motions
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Trial Proceedings and Motions
    • 5 Mayo 2019
    ...1983). The trial court has no obligation to determine admissibility of hearsay evidence in a pretrial hearing. United States v. Kennedy, 714 F.2d 968 (9th Cir. 1983). The trial court may delay ruling on admissibility of impeachment evidence until the accused has testified. United States v. ......
  • Trial proceedings and motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • 31 Julio 2018
    ...1983). The trial court has no obligation to determine admissibility of hearsay evidence in a pretrial hearing. United States v. Kennedy, 714 F.2d 968 (9th Cir. 1983). The trial court may delay ruling on admissibility of impeachment evidence until the accused has testiied. United States v. F......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT