U.S. v. Gillespie, 87-5067

• Citation: 852 F.2d 475
• Decision Date: 22 July 1988
• Docket Number: No. 87-5067,87-5067
• Parties: 26 Fed. R. Evid. Serv. 558 UNITED STATES of America, Plaintiff-Appellee, v. Luis Albert GILLESPIE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 475

852 F.2d 475

26 Fed. R. Evid. Serv. 558

UNITED STATES of America, Plaintiff-Appellee, v. Luis Albert GILLESPIE, Defendant-Appellant.

No. 87-5067.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 14, 1988.

Decided July 22, 1988.

Charles R. Breyer, Coblentz, Cahen, McCabe & Breyer, San Francisco, Cal., for defendant-appellant.

Steven E. Zipperstein, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

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

Before KOELSCH and LEAVY, Circuit Judges, and BRYAN, ^* District Judge.

LEAVY, Circuit Judge:

Luis Albert Gillespie appeals his conviction by a jury of causing the transportation of a person in interstate and foreign commerce for illegal sexual purposes (18 U.S.C. Secs. 2(b), 2421 (1987)) and of directly and indirectly importing an alien for immoral purposes (8 U.S.C. Sec. 1328 (1982)).

The government's case was based primarily on the testimony of Isabel Anderson, who testified she saw the appellant with his pants down rubbing himself against his three-year-old goddaughter while she lay on a bed with her underwear off and her nightgown drawn up. Anderson also testified that, a few weeks earlier, she saw blood on the child's underwear after she had been with the appellant a few hours. Anderson further testified that David Gillespie, the appellant's adoptive father, used a false birth certificate to obtain an Ecuadorian court decree granting him custody of the child and a visa to bring her to the United States. At trial, the appellant denied that he ever abused the child.

On appeal, the appellant contends the trial court abused its discretion in 1) admitting evidence from which the jury could infer that he and David Gillespie had a homosexual relationship; 2) admitting expert testimony on characteristics common to child molesters; and 3) admitting evidence concerning anatomically correct dolls without qualifying it under the test in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (Frye test). We find these contentions meritorious. Moreover, the trial court's errors were not harmless.

The conviction is reversed and the case remanded for a new trial.

FACTS AND PROCEEDINGS

In 1983 the appellant, a native of Ecuador, traveled from the United States to Ecuador to visit his family. In Ecuador, he agreed to act as godfather to a one-year-old girl. Later in 1983 David Gillespie, a single male age 54, obtained a California decree of adoption, adopting the appellant, a male of 32 then separated from his wife.

In 1984, the appellant and David Gillespie visited Ecuador and decided to bring the little girl back to Los Angeles. Using a false birth record, David Gillespie obtained an Ecuadorian court decree granting him custody of the child. He flew her to Honduras and left her with Isabel Anderson, a Canadian nanny he had hired. Pursuant to David Gillespie's instructions, Anderson used the false birth record and the Ecuadorian custody decree to obtain a United States visa for the child from the American authorities in Honduras.

Anderson and the child flew to New York, met David Gillespie, and then flew to Chicago for the wedding of David Gillespie's sister. The appellant flew from Los Angeles to Chicago on the same day, arriving at approximately 7:15 p.m. David Gillespie, the child, and the appellant had dinner at David Gillespie's sister's house and returned to their hotel sometime after 10:00 p.m. At trial, Anderson testified she Anderson also testified that one night approximately four weeks after the Gillespies returned from the Chicago wedding to Los Angeles, she saw the appellant sexually molesting the child. The appellant testified that he never abused the child.

saw blood on the child's underwear that night.

A Dr. Higgins testified the child suffered vaginal trauma consistent with sexual abuse but he could not determine how recently or by what means the abuse had been inflicted. The child's therapist testified the child's behavior with anatomically correct dolls showed she had been molested by an adult male using his penis and not by a woman. The appellant does not dispute that the child was sexually abused, but suggests the abuse occurred in Ecuador or when Anderson performed an unauthorized vaginal examination.

The government filed an indictment charging the appellant with violation of 18 U.S.C. Secs. 2 and 2421 and 8 U.S.C. Sec. 1328. He was convicted on both counts after a four week jury trial.

DISCUSSION

I. Evidence of Homosexuality

The appellant contends the trial court abused its discretion by admitting various witnesses' testimony indicating he and David Gillespie had a homosexual relationship. The appellant's contention has merit. ¹

We review admission of evidence for abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983); United States v. Gwaltney, 790 F.2d 1378, 1382-83 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1337, 94 L.Ed.2d 187 (1987). District court errors are subject to the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Anderson and other prosecution witnesses testified the appellant slept with his adoptive father. The government contends the evidence was admissible because the defense raised the issue of homosexuality in its opening statement. Alternatively, the government contends it did not present that testimony to prove the appellant, as a homosexual, was more likely to sexually abuse a child, but offered it under Federal Rule of Evidence 404(b) to show the appellant's motive, intent, plan, and design for bringing the child to the United States. The government argues that evidence of the sleeping arrangements in the Gillespie household shows the appellant invented the facade of a father-son relationship to cover up his incestuous lifestyle, and that he intended to extend that facade to the child in order to cover up his true, illicit purpose for bringing her to the country.

We reject the government's arguments and hold it was error to admit evidence from which the jury could infer the Gillespies had a homosexual relationship. The defense did not raise the issue of homosexuality. Rather, the defense moved in limine that the trial court exclude evidence of homosexuality. The trial court did not rule on the motion until the jury selection was completed. During opening argument, the government told the jury the appellant and David Gillespie slept in the same bed. The first evidence of homosexuality was presented during the government's case in chief when it asked Anderson about the sleeping arrangements in the household. In examining the defense's opening statement, we cannot conclude that the defense raised the issue of homosexuality.

Nor can admission of the evidence be justified under Rule 404(b). The evidence neither proved nor disproved that the appellant molested the child. It was offered to show that the men differed from what they held themselves out to be, but none of the testimony about their sexual relationship helped the trier of fact decide whether the appellant was guilty of the offense Evidence of homosexuality is extremely prejudicial. Cohn v. Papke, 655 F.2d 191, 194 (9th Cir.1981) (introduction of evidence of homosexuality creates a "clear potential that the jury may have been unfairly influenced by whatever biases and stereotypes they might hold with regard to homosexuals"); United States v. Birrell, 421 F.2d 665, 666 (9th Cir.1970) (conviction for theft reversed because trial court admitted evidence of homosexuality). Moreover, the testimony here was not elicited as the by-product of neutral cross-examination on legitimate issues. Rather, the government repeatedly asked, over defense objections, pointed questions about the Gillespies' sleeping arrangements.

charged. ²

The government's argument that admission of the evidence of homosexuality was harmless because the trial court gave a limiting instruction is unconvincing. This case is centered around the appellant's denial of Anderson's eyewitness testimony. The verdict probably depended on the jury's assessment of the credibility and character of the appellant and Anderson. Under these circumstances the trial court's curative instruction to the jury was not sufficient to obviate the prejudice. Therefore, the admission of evidence of homosexuality was not harmless error.

II. Evidence of Characteristics of a Child Molester

The appellant contends the district court erred in admitting the testimony of clinical psychologist Dr. Maloney on characteristics common to child molesters. The appellant contends he did not put his general character at issue and did not assert his character was such that he could not sexually abuse a child. He argues that under such circumstances Dr. Maloney's testimony was irrelevant except for the unpermitted purpose of showing he had a propensity to molest the child because his background matched that of a typical child molester.

Generally, we review the trial court's admission of evidence for abuse of discretion. United States v. Hernandez-Cuartas, 717 F.2d 552, 554-55 (9th Cir.1983). Rule 404(a)(1) provides:

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except....[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.

Fed.R.Evid. 404(a)(1).

A defendant puts his character at issue when he offers testimony as to honesty or his good reputation. Michelson v. United States, 335 U.S. 469, 479, 483-84, 69 S.Ct. 213, 220, 222, 93 L.Ed. 168 (1948). In Michelson, the court held that the defendant in a trial for bribery put his general character at issue when he called five witnesses who testified that he had a good reputation and was honest, truthful, and law abiding. Id. at 483-84, 69 S.Ct. at 222....