U.S. v. Torres

• Citation: 937 F.2d 1469
• Decision Date: 03 July 1991
• Docket Number: No. 89-10248,89-10248
• Parties: 33 Fed. R. Evid. Serv. 660 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Jesus TORRES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1469

937 F.2d 1469

33 Fed. R. Evid. Serv. 660

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Jesus TORRES, Defendant-Appellant.

No. 89-10248.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 1991.

Decided July 3, 1991.

Javier Chon-Lopez, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant.

Philip G. Espinosa, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TANG, SKOPIL and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Manuel Jesus Torres appeals his conviction on two counts of aggravated sexual abuse in violation of 18 U.S.C. Sec. 2241(c) (1988). He contends, first, that the district court erred in refusing to allow him to cross-examine the victim regarding a subsequent incident of sexual behavior with another individual; second, that the district court erred in refusing to allow him to present testimony that the victim's father had molested her two half-sisters when they were the victim's age; and third, that the district court erred in refusing to give the jury a lesser-included offense instruction on abusive sexual contact. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988) and we affirm.

FACTS AND PROCEDURAL BACKGROUND

In early February 1988, a mother discovered the bloodstained shorts and panties of her 9-year-old daughter hidden in the back of a closet. When first questioned about the stained clothing, the girl began to cry and refused to answer. The next morning, in response to further questioning, the girl stated that Torres, who resided in the house with the girl's older sister, was responsible.

The mother then took the girl to a clinic where a pediatrician conducted a gynecological examination. The pediatrician determined that the girl's hymen had a 7 millimeter opening which was at the "upper limit of normal" for a child of that age, but consistent with the girl's account. Reporter's Transcript of Proceedings, January 25, 1989, at 76-77 (trial testimony of Dr. Wunsch) [hereinafter Reporter's Transcript]. The police were contacted, the girl was questioned, and Torres was arrested.

Torres was charged with two counts of aggravated sexual abuse involving a child under the age of twelve in violation of 18 U.S.C. Sec. 2241(c). Count 1 charged Torres with having digitally penetrated the girl. Count 2 charged him with having or attempting to have sexual intercourse with the girl. Because these alleged acts took place on an Indian reservation and both Torres and the girl are American Indians, exclusive federal jurisdiction was invoked under the Major Crimes Act, 18 U.S.C. Sec. 1153 (1988).

A first trial ended in a mistrial when the jury was unable to reach a verdict. At the second trial, the girl testified that she was alone in the living room of her home watching television with Torres when he unbuttoned her shorts and pulled them down. She then testified that "he stuck his finger up in my private spot" between her legs. The girl stated that Torres then unbuttoned his pants, got on top of her, and "stuck his private spot in mine," causing her pain. According to the girl, Torres remained on top of her "for a while" and then stood up to respond to the honking of an automobile horn outside the home. The girl testified that Torres told her not to tell anyone what had occurred. She stated that she later discovered blood on her shorts and panties and hid them in a closet out of fear.

Torres testified on his own behalf and offered a completely exculpatory version of events. The pediatrician who had examined the girl also testified. She stated that the condition of the girl's hymen was "consistent with penetration[, but] ... consistent with no penetration too." Reporter's Transcript, at 77. A criminologist testified that the girl's panties tested positively for the presence of semen, although DNA tests for the identity of the donor proved inconclusive.

A jury found Torres guilty on both counts of aggravated sexual abuse. Torres was sentenced to 175 months on each count, to be served concurrently. He was also sentenced to a five-year term of supervised release.

DISCUSSION

A. Subsequent Sexual Behavior with Another Person

In August 1988, approximately six months after the acts that form the basis for this criminal prosecution, the victim's sisters discovered her alone in a room with a 17-year-old juvenile male with her panties pulled down. At a pretrial suppression hearing, Torres argued that he should be allowed to cross-examine the victim about this incident. The district court refused the request on the ground that the evidence was irrelevant and lacked probative value. ¹

Torres contends this cross-examination should have been allowed under exceptions to the exclusionary force of Federal Rule of Evidence 412, the Federal Rape Shield Law. ² He argues that the district court's ruling violated his rights under the confrontation clause, that the cross-examination was relevant to show he was not the source of the semen found on the victim's panties, and that the proffered cross-examination should have been permitted to assist the jury in evaluating the victim's credibility.

Under Federal Rule of Evidence 412, reputation or opinion evidence of past sexual behavior of a victim is not admissible. Fed.R.Evid. 412(a). Evidence of a victim's past sexual behavior, other than reputation or opinion evidence, is admissible under limited circumstances. See Fed.R.Evid. 412(b)(1), (b)(2)(A), (b)(2)(B).

"Past sexual behavior" is defined as "sexual behavior other than the sexual behavior with respect to which an offense under chapter 109A of title 18, United States Code is alleged." Fed.R.Evid. 412(d). This definition has been read broadly. "Rule 412(d) defines 'past sexual behavior' to include all sexual conduct other than the rape or assault that is in issue. Hence, the rule embraces all sexual conduct of the victim." 23 C. Wright & K. Graham, Federal Practice and Procedure: Evidence Sec. 5384, at 541 (footnotes omitted) (1980); see also People v. Stull, 127 Mich.App. 14, 17, 338 N.W.2d 403, 405 (1983) (holding that "prior" in similar state statute meant prior to trial); Haxton, Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence, 1985 Wis.L.Rev. 1219, 1227 (1985) ("prior" could mean prior to assault or prior to trial with latter being better interpretation). This broad interpretation is supported by the logic that

[s]ince as a practical matter one cannot prove future conduct by use of specific instances and it is hard to see the relevance of expert predictions of future sexual behavior, the only way to interpret "past" so as to give it any significance is to say that it means conduct of the victim [prior to the rape as well as] subsequent to the rape but prior to trial.

23 C. Wright & K. Graham, Federal Practice and Procedure: Evidence Sec. 5384, at 541 n. 24 (1980).

We conclude that the term "past sexual behavior" as used in Fed.R.Evid. 412 includes all sexual behavior of the victim of an alleged sexual assault which precedes the date of the trial. This conclusion is in accord with the avowed purposes of the rule which are "to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives", 124 Cong.Rec.H. 11944 (daily ed. Oct. 10, 1978) (statement of Rep. Mann), to encourage reporting of sexual assaults, and to prevent wasting time on distractive collateral and irrelevant matters. See Jeffries v. Nix, 912 F.2d 982, 986 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1327, 113 L.Ed.2d 259 (1991); United States v. Duncan, 855 F.2d 1528, 1533 (11th Cir.1988), cert. denied, 489 U.S. 1029, 109 S.Ct. 1161, 103 L.Ed.2d 220 (1989).

The evidence Torres sought to elicit by cross-examination of the victim was evidence of "past sexual behavior" within the meaning of Rule 412. Such evidence is admissible in three limited circumstances. First, such evidence is admissible where constitutionally required. Fed.R.Evid. 412(b)(1). Second, evidence of past sexual behavior with persons other than the defendant is admissible where it goes to the issue of the source of the semen or injury and the district court determines it is relevant and has probative value that outweighs the danger of unfair prejudice. Fed.R.Evid. 412(b)(2)(A) and 412(c)(3). Third, evidence of the victim's past sexual behavior with the defendant is admissible where it goes to the issue of consent and the district court determines that it is relevant and has probative value that outweighs the danger of unfair prejudice. Fed.R.Evid. 412(b)(2)(B), (c)(3). This last exception is not applicable in this case because the excluded evidence did not involve past sexual behavior with the defendant and the victim was too young to give a valid consent in any event. Therefore, we consider only the first two exceptions of Rule 412.

1. Constitutional Right to Confront Witnesses

The right to cross-examination is grounded in the sixth amendment.

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." [This] right ... "means more than being allowed to confront the witness physically." ... Indeed, " '[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.' "

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)) (emphasis in original) (citation omitted). See also Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) ("The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the 'accuracy of the...