Arizona v. Johnson

• Decision Date: 16 December 2003
• Docket Number: No. 02-10285.,02-10285.
• Citation: 351 F.3d 988
• Parties: State of ARIZONA, Plaintiff-Appellee, v. Dennis JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.3d 988

State of ARIZONA, Plaintiff-Appellee, v. Dennis JOHNSON, Defendant-Appellant.

No. 02-10285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2003 — San Francisco, California.

Filed December 16, 2003.

COPYRIGHT MATERIAL OMITTED

William J. Kirchner, Law Offices of Walter B. Nash, Tucson, Arizona, for the defendant-appellant.

David Paul Flannigan, United States Attorney's Office, Tucson, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-01-00037-2-RCC.

Before DOROTHY W. NELSON and WILLIAM A. FLETCHER, Circuit Judges, and WILLIAM ALSUP,^* District Judge.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

United States Border Patrol Agent Dennis Johnson timely appeals his convictions for sexual assault and kidnapping. We affirm, holding that the district court: (1) did not abuse its discretion in answering a question from the jury during its deliberations; (2) did not abuse its discretion in admitting testimony of prior consistent statements under Federal Rule of Evidence 801(d)(1)(B); (3) properly rejected a Sixth Amendment claim that the government had acted in bad faith in deporting aliens who might have been material witnesses; and (4) properly refused to dismiss the kidnapping charge as unsupported by the evidence.

I. Background

Blanca Amaya-Flores, a citizen of El Salvador, testified that she entered the United States illegally on September 28, 2000, with a group of five men. They crossed the border on foot at an unspecified location near Douglas, Arizona, and then obtained a car. After driving for about thirty minutes, they were stopped by the United States Border Patrol in Tombstone, Arizona. Agent Sandi Goldhamer, Agent-in-Training Daniel McClafferty, and defendant Johnson, the acting supervisor that night, were involved in the stop.

Agent Goldhamer questioned members of the group. She had Agent-in-Training McClafferty fill out an I-620 ("towing sheet") form for the group's car, and she filled out an I-826 form for Amaya-Flores. An I-826 form records an alien's name and biographical information, as well as the date and location of apprehension. Agent Goldhamer then gave the completed forms to Johnson. Amaya-Flores's I-826 form was later retrieved from among Johnson's possessions. Johnson took Amaya-Flores aside and questioned her out of the hearing of the others. After questioning her, Johnson instructed Amaya-Flores to get in the back of his patrol car.

The others in Amaya-Flores's group were placed in Border Patrol SUVs and taken to a border patrol checkpoint at Douglas. Amaya-Flores remained in Johnson's car. Agent Goldhamer testified that it was "unusual" for her to have in Johnson's car. She further testified that if she had realized that Amaya-Flores was in Johnson's car, she would have made room for her in one of the SUVs.

According to established Border Patrol procedures, Johnson was required to call in a "10-97" to announce that he was a male agent transporting a female. Johnson made no 10-97 call. He drove to a Circle K gas station and bought a cup of coffee and then drove to the Douglas checkpoint. When he arrived, there was a bus holding about twenty-five people whom the Border Patrol were preparing for voluntary return to Mexico. Johnson testified that he told other Border Patrol agents at the checkpoint to load the bus and "get the one from my vehicle and take them all down to the [Douglas] station." However, Amaya-Flores was never loaded onto the bus. She testified that she sat in the car at the checkpoint for somewhere between an hour and an hour and a half.

Johnson drove away from the Douglas checkpoint with Amaya-Flores still in the car. He testified that she tapped on the plexiglass divider and asked him to release her, and then, when he refused, that she offered to perform oral sex in return for her release. Amaya-Flores testified that she did not speak to Johnson during the car ride. Johnson drove to an isolated spot in the desert near Tombstone, not far from where he had apprehended Amaya-Flores. At trial, Amaya-Flores and Johnson offered conflicting stories of what next occurred.

Amaya-Flores testified that after Johnson stopped the car, he opened her door and told her to take off her clothes. When she was naked except for her socks, Johnson told her to get out of the car. Johnson then handcuffed Amaya-Flores's hands behind her back and told her to get onto her knees. Amaya-Flores testified that he told her that he would leave her in the desert if she did not perform oral sex. She testified that she was crying and that Johnson physically forced her to perform oral sex by pulling her hair and moving her head back and forth. She further testified that Johnson ejaculated in her mouth, and that she spit out the semen onto her legs. When she got dressed, some of the semen was transferred to the inside of her pants. A later DNA test identified the semen as that of Johnson.

Johnson testified that the oral sex was consensual. He testified that Amaya-Flores removed her clothes, but he maintained that he did not ask her to do so. He stated that he handcuffed her hands behind her back, and that he did so because he "didn't trust her." Johnson testified that he is 6'1" and weighs 220 pounds, and he estimated that Amaya-Flores is 5'5" and weighs 120 pounds. Johnson agreed that Amaya-Flores knelt naked in the desert to perform the oral sex, but testified that she did so voluntarily. He testified that she made "a sound that might have been a cry," but he specifically denied that he pulled Amaya-Flores's hair or held her head.

Rather than take Amaya-Flores back to the Douglas station where he was assigned, Johnson drove her to the border crossing at Naco, Arizona, about twenty-five miles west of Douglas. He testified that he let her out of the car about two blocks from the border crossing and told her which way to go. The Mexican border official detected that Amaya-Flores had an El Salvadoran accent and called the United States Border Patrol. Amaya-Flores testified that she told the Mexican official, "I didn't want to go back to the people from Immigration because I felt a great fear with them."

Agent Daniel Testa testified that he received the call from the Mexican official at Naco to get a "kickback" at approximately 4:00 a.m. Agent Testa transported Amaya-Flores back to the Border Patrol office in Naco and entered her into the IDENT/ENFORCE system in order to see "who caught her the first time, how long ago." There was no record of Amaya-Flores in the system. At about 6:00 a.m., Agent Jose Proenca, a native Spanish speaker, spoke with Amaya-Flores. She described the events of the evening to him, including the oral sex with Johnson, consistently with her trial testimony recounted above. A day later, Agent Ricky Mauldin showed Agent Goldhamer a picture of Amaya-Flores. She recognized Amaya-Flores immediately, recalled filling out her I-826 form, and stated that she had seen Johnson talking with her.

Agent Maudlin and Cochise County Investigator Vince Madrid interviewed Johnson on October 2nd, three days after Amaya-Flores was "kicked back" from Naco. According to a transcript of the interview introduced into evidence, Johnson at first said that Amaya-Flores had been placed on the bus with the other voluntary returnees. Investigator Madrid warned Johnson that he was "catching" him in "a couple of things." Johnson then changed his story and admitted that he had driven with Amaya-Flores to the Circle K for coffee and then to the Douglas checkpoint, and that he had dropped her off at the Naco border crossing. After Agent Mauldin told Johnson that there was "physical evidence," Johnson changed his story again and finally admitted that Amaya-Flores had performed oral sex on him, but insisted that it was at her instigation, stating, "I allowed her to convince me to do something I shouldn't have."

Johnson was charged with sexual assault and kidnapping in violation of Arizona Revised Statutes §§ 13-1406(A) and 13-1304(A)(3). As a federal officer, he removed the action to federal district court pursuant to 28 U.S.C. § 1442(a)(1). The trial was therefore conducted pursuant to federal procedural rules and Arizona substantive criminal law. See Arizona v. Manypenny, 451 U.S. 232, 241, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). Johnson was convicted of both counts after a five-day jury trial. He was sentenced to concurrent prison terms of seven years on the sexual assault count and five years on the kidnapping count.

Johnson timely appealed. We affirm the district court in all respects.

II. Discussion

A. Response to Jury Question

During deliberations, the jury sent out a written question asking, "Is someone in custody of a law enforcement officer able to give consent under the law?" The court asked counsel to suggest answers. Defense counsel responded, "[J]udge, it's a simple answer[. T]he answer is yes.... I think it should be answered and then direct them to the jury instructions." Government counsel responded, "Just rely on the evidence presented and the instructions you gave them." The court then said to counsel:

What I propose to do is say you're to rely on the instructions and evidence you already have. If I tell them yes, you get more complicated and more questions.

. . .

I'm going to say, "Please consider the instructions you've gotten so far" and see if they come up with any more questions. If they do, we may address it differently, but we'll see if they have any more questions.

The court wrote at the bottom of the paper on which the question was written, "Please consider all the evidence and the instructions you have been given," followed by his initials. The paper, containing both the question and the court's answer, was then given to the jury. After further deliberation, the jury returned a guilty verdict on both counts.

At...