U.S. v. Bighead, 95-30157

• Decision Date: 18 November 1997
• Docket Number: No. 95-30157,95-30157
• Citation: 128 F.3d 1329
• Parties: 47 Fed. R. Evid. Serv. 1266, 97 Cal. Daily Op. Serv. 8686, 97 Daily Journal D.A.R. 14,085 UNITED STATES Of America, Plaintiff-Appellee, v. Charles BIGHEAD, Defendant-Appellant. Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1329

128 F.3d 1329

47 Fed. R. Evid. Serv. 1266, 97 Cal. Daily Op.

Serv. 8686,

97 Daily Journal D.A.R. 14,085

UNITED STATES Of America, Plaintiff-Appellee, v. Charles BIGHEAD, Defendant-Appellant.

No. 95-30157.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 4, 1996.

Decided Nov. 18, 1997.

William I. Lee, Federal Public Defender, Tacoma, WA, for defendant-appellant.

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CR-94-05701-RJB.

Before: FLETCHER, JOHN T. NOONAN, Jr. and RYMER, Circuit Judges.

PER CURIAM.

Charles Bighead appeals his conviction of one count of sexual abuse of a minor, in violation of 18 U.S.C. §§ 2243, 1153. We have jurisdiction, 28 U.S.C. § 1291, and affirm. ¹

I

At trial, Bighead's daughter, Roxanne Bighead Eison, testified that Bighead began fondling her in or about 1982 after she began living with her parents on an Indian reservation. She was seven years old at the time. Roxanne also testified that in or about 1987, when she was approximately eleven years old, Bighead forced her to have sexual intercourse with him and paid her money after the act. She testified that over the course of the next several years, Bighead continued to have sexual intercourse with her and would often pay her money following these acts. In 1993, when she was seventeen, she rejected his overtures.

That same year, shortly before her eighteenth birthday, she confided in a tribal police officer about what had transpired with Bighead. This was her first disclosure to an adult about the instances of sexual abuse. She explained that she delayed reporting what happened because she was scared of Bighead, and because she felt ashamed, and like a prostitute. Although this was her first disclosure to an adult, Roxanne previously had confided in two of her childhood friends: once when she was in sixth grade, and once when she was sixteen years old.

Defense counsel's cross-examination of Roxanne focused primarily on her delayed reporting, as well as on some inconsistencies in her testimony. In rebuttal, the government called Tasha Boychuk, director of forensic services at the Children's Advocacy Center, as an expert witness. Boychuk testified about general characteristics of child sexual abuse victims, specifically the timing of their reporting and their recollection of details.

II

Bighead argues that the district court erred in admitting Boychuk's expert testimony about certain characteristics of child sexual abuse victims, because it lacked foundation under Fed.R.Evid. 702 and under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He faults Boychuk's opinion as it went beyond her own observations, cf. United States v. Hadley, 918 F.2d 848 (9th Cir.1990), but lacked the bases required by Fed.R.Crim.P. 16; and he contends that the district court should have determined whether her theories could be tested, were subjected to peer review and publication, had the potential for error, and were generally accepted in the field.

Boychuk was called as a rebuttal witness after the victim's ability to recall and to recount the incidents of sexual abuse vigorously had been challenged on cross-examination. Boychuk did not testify about the facts of this case, or about the particular victim, whom she had never examined. Rather, she testified about "delayed disclosure" and "script memory," which are typical characteristics she has observed among the more than 1300 persons she has interviewed who say they are victims of child abuse. As such, her testimony falls within Hadley. It holds that where an expert testifies to "general behavioral characteristics" based upon the expert's "professional experience" and does not rely on "novel scientific technique" or employ "any special techniques or models," Frye v. United States, 293 F. 1013 (D.C.Cir.1923) is not implicated. 918 F.2d at 853. Daubert has supplanted the Frye test that had previously been followed uniformly. However, we have already indicated that Daubert's tests for the admissibility of expert scientific testimony do not require exclusion of expert testimony that involves specialized knowledge rather than scientific theory. United States v. Cordoba, 104 F.3d 225 (9th Cir.1997). Boychuk's testimony consisted of her observations of typical characteristics drawn from many years experience interviewing many, many persons, interviewed because they were purported victims of child abuse. That it was not an abuse of discretion to permit it follows from Cordoba, where we held that expert testimony on narcotics traffickers' modus operandi was not "scientific testimony" subject to Daubert, because it involved "specialized knowledge, not scientific knowledge" and required no inference or assertion derived from a scientific method. Id. at 230. See also McKendall v. Crown Control Corp., 122 F.3d 803, 806 (9th Cir.1997). We do not agree with Bighead that Hadley doesn't apply simply because the expert referred in passing to "studies, literature and specific syndromes." Her opinion was based on her own observations. In any event, she could have been, but was not, cross-examined about the nature and extent of her reliance on any other source.

Bighead also argues that Boychuk's testimony did not assist the trier of fact, and was more prejudicial than probative, because it infringed on the jury's province to determine credibility. We see no improper buttressing, as Boychuk testified only about "a class of victims generally," and not the particular testimony of the child victim in this case. Hadley, 918 F.2d at 852; see also United States v. Antone, 981 F.2d 1059, 1062 (9th Cir.1992). By the same token, Boychuk's testimony had significant probative value in that it rehabilitated (without vouching for) the victim's credibility after she was cross-examined about the reasons she delayed reporting and about the inconsistencies in her testimony. The district court did not abuse its discretion in permitting the expert to testify, even though two other witnesses testified about actual disclosures as early as 1984 and 1990, since Boychuk's testimony went to disclosure for the purpose of assistance. Regardless, the jury was free to determine whether the victim delayed disclosure or simply fabricated the incidents.

AFFIRMED.

NOONAN, Circuit Judge, dissenting.

Charles Luther Bighead, Jr., has been convicted of a horrible crime, a crime that the government described to the jury that convicted him as the rape of his thirteen-year-old daughter, Roxanne. Throughout the proceedings, and on the witness stand, he steadily maintained his innocence. He was convicted on the basis of Roxanne's testimony, fortified by the testimony of the government's expert, Tasha Boychuk. The latter's testimony was critical: she was the government's last witness and the government ended its rebuttal to the jury by invoking her words. Her testimony was also inadmissible. I begin by showing how crucial the Boychuk evidence was. I conclude by showing why it should never have been admitted.

The Testimony Against Bighead.

Roxanne Bighead told this story on the witness stand: Until the second grade she lived with her grandparents. She then moved into a small trailer (12 by 60) with her parents and two brothers; there were only two bedrooms in the trailer. She lived in the trailer six years and then moved to a trailer park where she lived in a trailer in which she and her brothers each had their own rooms. At the age of seven, when she was still living in the first trailer, her father touched her chest "in a way [she] didn't like." As she got older, the touching "progressed." When she was almost eight he put his fingers in her vagina; he subsequently, performed this act "a lot." When she was around nine, she rode with her father who was delivering fish to Sea-Tac Airport; on the way back on I-5, her father asked her to put her mouth on his penis; she did, and he gave her $5.00. After this occasion he performed this act with her "quite a bit. From there it went on to the next stage." The next stage, she said, occurred at an old Coast Guard station, to which her father drove her in the family van when she was nine or ten and inserted his penis in her vagina. After that, there were "other occasions inside and outside the house, on Moclips Highway, and also inside the trailer located at the trailer park," when he performed this act with her. At the time of these acts in the second trailer she was about twelve. On different occasions of this kind her father gave her $5.00 to $15.00. In April 1989, when she was thirteen, she was home alone sick. Her father entered her room in his underwear. She resisted him. He "went down toward my vagina area and put his mouth there." She was asked, "Did you do anything?" and she replied, "Yes, I tried peeing."

This testimony was crucial in relation to Count II of the indictment, which alleged "a sexual act, to wit, contact between the penis and the vulva." On direct examination, Roxanne made mention of no fact proving the charge. The district judge, out of the presence of the jury, told counsel: "I don't believe that I heard testimony supporting Count II.... [E]ither I am missing something, or you are missing something." Prompted by the court, and blaming herself for the omission, the prosecutor reopened the direct testimony of Roxanne, made reference to her prior testimony about the incident in April 1989, and asked, "Did he do anything else that time?" She answered: "Yes. He had also entered his penis into my vagina." She remembered the time, she said, "because I recall this as the last incident that had taken place between me and my father." A little later, however, she testified that on four occasions in 1993 her father approached her for...