U.S. v. Cherry

• Decision Date: 22 August 1991
• Docket Number: No. 90-2427,90-2427
• Citation: 938 F.2d 748
• Parties: 34 Fed. R. Evid. Serv. 132 UNITED STATES of America, Plaintiff-Appellee, v. William CHERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 748

938 F.2d 748

34 Fed. R. Evid. Serv. 132

UNITED STATES of America, Plaintiff-Appellee, v. William CHERRY, Defendant-Appellant.

No. 90-2427.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 1991.

Decided July 26, 1991.

Rehearing and Rehearing En Banc

Denied Aug. 22, 1991.

Lance C. Malina, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Jeffrey B. Steinback, Leonard Goodman, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Following a bench trial, William Cherry was convicted of violating 18 U.S.C. Sec. 2242(1) (sexual abuse) and 18 U.S.C. Sec. 2243(a) (sexual abuse of a minor). The district court sentenced him to 120 months' imprisonment followed by three years of supervised release. In this appeal, Mr. Cherry contends that section 2242(1) is void for vagueness on its face and as applied. He also challenges the district court's admission of two statements that he contends are inadmissible hearsay. Finally, Mr. Cherry argues that the district court erred

in enhancing his sentence for obstruction of justice under section 3C1.1 of the United States Sentencing Guidelines (U.S.S.G. or the guidelines). For the reasons set forth in this opinion, we affirm his convictions and affirm the judgment of the district court as amended.

I BACKGROUND

A. Facts

On June 14, 1989, the thirteen year-old victim, YW, arrived to spend the summer with her aunt and uncle at Fort Sheridan, a United States military base in Illinois. YW became friends with Teneisha Mercer, Mr. Cherry's stepdaughter. Mr. Cherry was a twenty-seven-year-old civilian government employee residing with his family at Fort Sheridan, two houses away from YW's aunt and uncle. On the evening of July 9, 1989, Teneisha Mercer went to visit YW. While YW was washing her friend's hair, Mr. Cherry stopped by and asked YW if she would wash his hair as well. He told her that his wife usually washed his hair but that she was out of town. YW agreed and arrived at Mr. Cherry's home shortly thereafter.

YW began to wash Mr. Cherry's hair while the two were alone in his kitchen. Mr. Cherry told YW that she was attractive, indicated that his children (Teneisha and her sister) were "hard sleepers [who] wouldn't hear us," and suggested that YW "could come up to his room and we could do something." Tr. at 28. YW initially thought that Mr. Cherry was just joking. She thus agreed when he asked her to baby-sit that evening. Mr. Cherry told YW that he already had talked to her uncle about the baby-sitting plans, but suggested that she go tell him anyway. She went home, picked up some nightclothes, and then returned to Mr. Cherry's home.

At approximately 3:00 a.m. on the morning of July 10, 1989, YW awoke in the bedroom that she was sharing with Mr. Cherry's two daughters. She observed Mr. Cherry gesturing to her in a way that she interpreted as a signal to come to his room. She became frightened and decided to leave. On her way out of the house, she again encountered Mr. Cherry. He grabbed YW, placed her on his knee, and began fondling her. According to YW, she "just sat there and started crying and said, 'I don't want to do this. I want to go home.' " Id. at 36. Mr. Cherry soon picked YW up and placed her on the floor, told her that he was wearing a condom, pulled down her underwear, unzipped his own pants, and penetrated her. He let her leave the house soon thereafter, but only after saying that she should not tell her uncle what had happened.

B. District Court Proceedings

Because the events described above occurred on property under exclusive federal jurisdiction, Mr. Cherry was indicted under federal law. Count One of the three-count indictment charged him with violating 18 U.S.C. Sec. 2241(a) by using force to "knowingly cause and attempt to cause [YW] to engage in a sexual act as defined in 18 U.S.C. Sec. 2245(2)(A), namely contact between the penis and the vulva." ¹ R.11 at 1. Count Two charged him with violating 18 U.S.C. Sec. 2242(1) by knowingly placing YW in fear in order to cause her to engage in a sexual act. ² Finally, Mr. Cherry was At trial, YW was the government's first witness. After describing the events of the night of July 9-10, 1989, she testified that she first reported the incident early in the afternoon of the 10th to a friend, Sean Levine. YW testified that she told Levine "how I was forced to have sex." Tr. at 47. YW was cross-examined extensively. For example, counsel for Mr. Cherry tried to get YW to admit that she and Mr. Cherry's daughters, rather than Mr. Cherry, had first proposed that YW baby-sit that night, that she had initiated the discussion about sex, that she had agreed voluntarily to engage in sex, and that Mr. Cherry had treated her gently.

                charged in Count Three with violating 18 U.S.C. Sec. 2243(a) by knowingly engaging in a sexual act with YW. 3   Mr. Cherry pled not guilty on all three counts and waived his right to a jury trial
                

The government's next witness was Levine. Approximately one week prior to trial, the government had filed a motion in limine requesting admission of Levine's proposed testimony regarding his conversation with YW on July 10, 1989. In its motion, the government argued that the testimony would be admissible under Federal Rule of Evidence 803(24), the residual hearsay exception. In essence, the government submitted that YW's telling Levine of the incident amounted to a "fresh complaint" of forcible sexual assault and therefore had sufficient indicia of reliability to qualify for admission under this rule. The court agreed to hear Levine's testimony, but reserved a final ruling on the admissibility of the evidence. The court also observed that the testimony might prove to be admissible as a prior consistent statement under Rule 801(d)(1). ⁴ As Levine began to testify about the conversation, Mr. Cherry's counsel objected: "I believe the evidentiary testimony should be limited only to the fact that there was some type of complaint made and that it should exclude details as well as the name of the defendant." Tr. at 127. The government countered by pointing out that, in light of the cross-examination of YW, it now was offering the testimony as a prior consistent statement. Invited to address the 801(d)(1) issue by the court, Mr. Cherry's counsel replied that he was

not prepared to argue 801 because it was my understanding from the government's motion that ... they are saying that the government recognizes that the testimony would be limited to [the fact that a complaint had been made]. As such, Judge, I think that should be the extent of it. I think it should be limited. That was my understanding of how we were going to proceed. If I had an objection to anything beyond that, then, I would have prepared for it. As it is now, I am given notice right on the spur of the moment. Counsel is ready to argue and I am not ready to argue on that, Judge.

Id. at 129-30. After observing that Rule 801(d)(1), unlike Rule 803(24), has no notice requirement, the court overruled the objection and admitted the testimony as a prior consistent statement. Levine then recounted his conversation with YW in terms that corroborated her testimony that she had been an unwilling participant in the sexual activity initiated by Mr. Cherry.

The government's next witness was Dr. Alan Beer, who had examined YW on the morning of July 11, 1989, approximately twenty-eight hours after the incident at Mr. Cherry's home. Without relevant objection, ⁵ Dr. Beer testified that YW "specifically complained that she had been sexually fondled and sexually abused." Tr. at 152. He recounted further details about her account of the incident, including her claim that her vagina had been penetrated. Dr. Beer then was asked whether YW had told him "anything else about the incident that caused her to be at the hospital," and he replied:

She told me that: (Reading)

"He held my arms so I couldn't do anything. He laid me on the floor and had intercourse with me. He said not to tell anyone. The kids I was sitting with are his children. He never did this to me before."

Id. at 153.

At this point, Mr. Cherry's counsel objected. He contended that "that part of the history ... is not relevant to his diagnosis of the alleged incident." Id. He further objected that the testimony was prejudicial to Mr. Cherry. Before ruling on the objection, the court permitted the government to establish further foundation, and Dr. Beer testified that the details he previously had recounted had helped him in diagnosing YW's condition. The court then overruled the objection. Dr. Beer also testified that YW appeared frightened during their discussion prior to her physical examination: "It took some time for me to gain her confidence and have her reveal exactly what had happened before I did the physical examination." Id. at 155. Based on that examination, he testified that sexual penetration of her hymen had occurred within "a recent period preceding my examination." Id. at 156. During cross-examination, Dr. Beer indicated that the penetration would have occurred no more than forty-eight hours or fewer than six hours preceding his examination of YW. Finally, on redirect, Dr. Beer clarified that the penetration he had described earlier would have involved contact with the vulva.

Mr. Cherry testified in his own defense. He contended that his stepdaughter Teneisha had asked that YW spend the night on July 9th and denied that he had asked YW to baby-sit. He further testified that he had not suggested to YW that they have intercourse until she suggestively brushed up against him. Although he acknowledged attempting to have intercourse with her, he claimed that his penis merely had touched her thigh and denied that he...