U.S. v. Cerno

• Decision Date: 24 June 2008
• Docket Number: No. 07-2136.,07-2136.
• Citation: 529 F.3d 926
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steve CERNO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

529 F.3d 926

UNITED STATES of America, Plaintiff-Appellee, v. Steve CERNO, Defendant-Appellant.

No. 07-2136.

United States Court of Appeals, Tenth Circuit.

June 24, 2008.

Alonzo J. Padilla, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, NM, for the Defendant-Appellant.

David N. Williams, Assistant U.S. Attorney, Office of the United States Attorney, Albuquerque, NM, for the Plaintiff-Appellee.

Before LUCERO, HOLLOWAY, and McCCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

Steve Cerno appeals his jury conviction on five counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a) and his resulting sentence of life imprisonment. As to his conviction, Cerno challenges the admission of certain impeachment evidence introduced during his cross-examination, arguing that the impeachment was inadmissable under Federal Rules of Evidence 403 and 404(b). With respect to his sentence, he maintains that the district court erroneously applied a United States Sentencing Guidelines ("Guidelines") enhancement and failed to appropriately consider several factors militating against a life sentence.

We conclude that the district court did not abuse its discretion in admitting the challenged evidence under Rule 403, and that the evidence was admitted for a proper purpose under Rule 404(b). Upon review of Cerno's sentence, however, we hold that the district court committed procedural error by refusing to consider the relative amount of force that Cerno used in committing the charged offenses. Such a consideration goes to the heart of 18 U.S.C. § 3553(a)'s mandate that a sentencing court consider the nature and circumstances of the offense conduct when fashioning an appropriate, individualized sentence. This error was not harmless and requires reversal. We therefore affirm Cerno's conviction, but reverse his sentence and remand to the district court with instructions to vacate and resentence.

I

A

On July 27, 2005, a federal grand jury indicted Cerno, an enrolled member of the Acoma Pueblo Indian Tribe, on five counts of aggravated sexual abuse in Indian Country, in violation of 18 U.S.C. §§ 2241(a) and 2246(2)(B), and two counts of aggravated sexual contact in Indian Country, in violation of §§ 2244(a)(1) and 2246(3). The aggravated sexual abuse counts charged Cerno with using force on three occasions to orally and digitally violate his 16-year-old niece ("victim"). Two counts of aggravated sexual contact alleged that Cerno used force to cause the victim to touch his penis and to bite her breast. Cerno pleaded not guilty to all seven counts.

In a pretrial motion in limine, Cerno asked the court to prevent the government from introducing certain evidence at trial. First, he sought to exclude four pornographic videotapes that police found in the closet of his bedroom. Second, he asked the court to bar testimony relating to an incident in which, upon returning home from a tribal wake, the victim and other family members found him passed out on a couch with his penis exposed as a pornographic videotape played on the television ("exposure incident"). Cerno argued that both the videotapes and any testimony about the exposure incident were inadmissible under Federal Rules of Evidence 401 and 403 because the relevance of this evidence, if any, was substantially outweighed by the danger of unfair prejudice. The government responded that the evidence was relevant because it explained why the victim thought Cerno was "disgusting" and thus tended to support her claim that she did not consent to his physical advances on her. Relying on Rule 403, the court concluded that the evidence was inflammatory and had limited probative value, and thus granted Cerno's motion in limine.

At trial, the prosecution introduced the testimony of four witnesses, including the victim, her father and stepmother, and the investigating agent from the Federal Bureau of Investigation ("FBI"). The victim's father and stepmother testified generally about how they became aware of the victim's allegations, and discussed how the victim moved in with them on the reservation when she was 14, following the death of her mother. They stated that once the family determined that the living situation with the victim was not working out, the victim's grandmother volunteered to allow the victim to stay in her home, which was located on a separate part of the reservation. Cerno also lived with the victim's grandmother, his mother, at that time. The victim's father and stepmother stated that they never witnessed signs of abuse and became aware of the allegations only after the victim reported certain instances of abuse to other family members.

An FBI agent testified about her investigation into the abuse allegations. With respect to the charge that Cerno bit the victim's breast, the agent presented a photograph of a scar on the breast, but she conceded that the Bureau had not conducted a forensic comparison between the bite mark and Cerno's teeth.¹

Only the victim specifically testified about the abuse. When she arrived at her grandmother's house in July 2004, Cerno vacated his bedroom to allow the victim to use it. It was in that bedroom that the abuse occurred. With respect to the charges of aggravated sexual abuse, she told the jury about several specific occasions during which Cerno had abused her by digitally and orally violating her. She also asserted that Cerno had once bit her breast and coerced her into touching his penis. Although she testified that Cerno did not physically threaten her or otherwise hit her, she stated that he forced her legs open when he assaulted her and that she tried to move away and close her legs to prevent the abuse. She also told the jury that she eventually reported the sexual abuse to two other relatives while she was visiting them in their home. On making these allegations against Cerno, she moved in with these relatives.

During cross-examination, Cerno's counsel asked the victim whether she was scared that Cerno might hurt her. The government objected, asking the court to reconsider its evidentiary ruling with respect to the exposure incident and the pornographic videotapes. It argued that the evidence would demonstrate that the victim feared Cerno because she had seen him asleep with his penis exposed, and because "pornography is a form of violence."² Although the court admonished Cerno's counsel that he was "getting pretty close to the edge" with his questions, the court declined to reconsider its pretrial ruling.

The defense then proceeded with its only witness: Cerno himself. During direct examination, he admitted to being an alcoholic and to drinking six to eight beers a day during the period when the victim lived with him and his mother. He stated that he did not have any blackouts when he drank because he "would remember where [he] was at and what [he] had done" when he woke up from drinking. He conceded, however, that he occasionally passed out from drinking. Cerno further testified that he was not permitted to drink inside his mother's home, and that he would instead "just sit outside [in the family truck] and drink beer and listen to the radio and wait until somebody flickered the lights at [him], telling [him] it's time to go in and go to bed."³ According to Cerno, drinking put him "in a lazy mood," and all he wanted to do was "sit down and just [be left] alone." "If [he] passed out, well, [he] passed out."

Cerno also denied committing the alleged abuse, claiming that the victim had perjured her testimony. In explaining why the victim might have falsely accused him, he theorized that she wanted to escape the restrictions of her grandmother's home and move in with more permissive relatives, and that the alleged abuse gave her an excuse to do so. He emphasized that the victim did in fact move in with those relatives shortly after she reported the abuse. He also posited that, as an alcoholic, he was an easy target for the allegations because he was essentially a "nobody." Finally, he questioned whether he could have had the opportunity to commit the abuse, noting that someone else was "usually always" in the house when he and the victim were at home, including his mother or one of his other nieces.

After Cerno's direct testimony, the government renewed its motion to admit the excluded evidence. It argued that the evidence contradicted Cerno's assertion that the victim contrived the allegations of abuse against him because he was "a drunk" and therefore a plausible scapegoat. The court initially denied the government's motion, but then ordered the parties to return to the bench, asking the government to clarify its argument. In asserting that the evidence was relevant, the government again claimed it was material to the element of force and that Cerno had made the testimony probative of that element during his cross-examination of the victim when he questioned her about her fear of Cerno. Because evidence of the exposure incident provided a basis for the victim's belief that Cerno was "repulsive, disgusting, [and] disgraceful," the government also claimed it was relevant to the victim's allegations that she attempted to prevent him from violating her. Although the court then asked the government whether the evidence might have some value to impeach Cerno's direct testimony, it ultimately reaffirmed its earlier decision to exclude the disputed evidence.

On cross-examination, Cerno was asked whether his heavy drinking impaired his judgment. Cerno responded that it did not, stating that "[s]ix to eight cans all day long isn't going to impair my judgment to where I don't know what I'm doing." He later acknowledged, however, that his alcoholism had a negative impact on his family life and said that "if I'd kept on the way I was going, yes, it would have [impaired my judgment] eventually." He further admitted that although his drinking habit had not yet impaired his judgment,...