U.S. v. Yazzie

• Decision Date: 16 November 1994
• Docket Number: No. 93-10488,93-10488
• Citation: 59 F.3d 807
• Parties: , 42 Fed. R. Evid. Serv. 29 UNITED STATES of America, Plaintiff-Appellee, v. Frederick YAZZIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 807

59 F.3d 807

64 USLW 2047, 42 Fed. R. Evid. Serv. 29

UNITED STATES of America, Plaintiff-Appellee, v. Frederick YAZZIE, Defendant-Appellant.

No. 93-10488.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 16, 1994 ^*.

Decided June 9, 1995.

Sandra Lynn Slaton, Phoenix, AZ, for defendant-appellant.

Mary H. Murguia, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

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

Before: CHOY, FARRIS, and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Defendant-Appellant Frederick Yazzie appeals from a jury verdict finding him guilty on fourteen counts of sexual abuse on and abusive sexual contact with his nine-year-old stepson (the victim). In his appeal, we consider several evidentiary rulings made by the district court, which Yazzie contends were erroneous and violated his rights under the Confrontation Clause and his right to a fair trial.

I.

The events of this case were triggered by an accusation made by Patrick Yazzie, Frederick Yazzie's mentally retarded brother, during a visit to the Indian hospital in Chinle, Arizona on June 18, 1992. Patrick Yazzie told the treating doctor that Yazzie was sexually abusing the victim. The doctor notified the Navajo Tribal Social Services regarding the allegation and a social worker was sent out to the Yazzie family's home. At that time, the victim denied any abuse.

As follow-up, another social worker took the victim in for a medical examination with Dr. Heather Wolfe. As part of the medical examination, Dr. Wolfe questioned the victim about the allegations of abuse. The victim again denied that Yazzie was abusing him. While Dr. Wolfe was interviewing the victim, she received a note from Sarah Yazzie, the victim's mother, who was in the waiting room. The note stated, "Doctor, [the victim] has been brain-washed. Step-dad brain-washed him. I ask help, please, I don't have nobody to trust. Sarah Yazzie." When Dr. Wolfe went to talk to her, Sarah Yazzie had written another note asking the doctor not to let the victim see the note because he would tell Yazzie. ¹

At that point, Dr. Wolfe asked Sarah Yazzie to elaborate. Sarah Yazzie then described to Dr. Wolfe a history of Yazzie's extensive sexual abuse of the victim. At trial, Dr. Wolfe recounted that Sarah Yazzie had described that she "had seen Frederick sucking [the victim's] dick and [the victim] sucking Frederick's dick[,]" and that "she had seen Frederick and the victim in bed together, and she had seen Frederick with his penis behind [the victim's] butt and a jar of Vaseline beside the bed." Sarah Yazzie had told Dr. Wolfe that episodes such as these had been occurring almost daily since about 1987. Dr. Wolfe's physical examination of the victim yielded findings of physical injuries consistent with sexual abuse and the history reported.

At that point, Navajo Criminal Investigator Ivan Tsosie was brought in to interview Sarah Yazzie and the victim. Sarah Yazzie again related extensive and detailed accounts Yazzie's sexual abuse of the victim, which took place over several years. Investigator Tsosie then interviewed the victim. After initially denying abuse, the victim gave detailed descriptions of continued sexual abuse by Yazzie. In separate interviews, both the victim and Sarah Yazzie described how Yazzie used lewd magazines, Vaseline, and a penis enlargement pump to perpetrate the reported sexual assaults on the victim. They told Investigator Tsosie where in the house he could find the materials. Based on this information, the FBI searched Yazzie's home and seized many lewd magazines, Vaseline, a penis pump, and tissue with semen on it.

In later interviews, FBI agent Jim Brown was able to determine specific dates and episodes of sexual abuse, including fondling, oral copulation, and anal penetration.

Later, Sarah Yazzie recanted her original statements to the social workers and FBI officials, stating that if called to testify, she would testify that Patrick Yazzie, not Frederick Yazzie, had sexually abused the victim. Based on Sarah Yazzie's repudiation of her earlier statements, the district court ruled that the government could not call Sarah Yazzie as a witness. During the trial, Sarah Yazzie's notes and statements to Dr. Wolfe were admitted under the medical examination exception.

In his defense, Yazzie sought to introduce the testimony of Petoria Smith, Yazzie's "cousin-sister," regarding certain events involving Patrick Yazzie and the victim. Yazzie argued that these incidents demonstrated that it was Patrick Yazzie who was abusing the victim. The trial judge did not allow Smith's testimony to be admitted as substantive evidence because Yazzie did not comply with the notice requirements of Federal Rule of Evidence (Rule) 412. The trial court did allow Smith's testimony for the limited purpose of impeaching the testimonies of Patrick Yazzie and the victim.

The jury found Yazzie guilty on all counts charged. Yazzie timely appeals.

II.

Yazzie argues that the trial judge erred by admitting lewd magazines and a penis enlargement pump. He claims (1) that these materials were irrelevant under Rule 401; (2) that they should have been excluded as improper character evidence under Rule 404(b); and (3) that they should have been excluded as unduly prejudicial under Rule 403. We review the district court's decision to admit evidence for abuse of discretion. See United States v. Lim, 984 F.2d 331, 335 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2944, 124 L.Ed.2d 692 (1993).

A.

Yazzie claims that since ownership or use of these materials neither proves nor disproves whether he molested the victim, they are irrelevant. This argument misstates the parameters of relevancy and the reasons for which the materials were admitted. Evidence is relevant if it has " 'any tendency to make the existence of any fact that is of consequence more or less probable....' " United States v. Blaylock, 20 F.3d 1458, 1463 (9th Cir.1994) (quoting Fed.R.Evid. 401).

The materials at issue were relevant to the manner in which the abuse occurred and to the victim's credibility. First, the magazines and pump were instrumentalities of Yazzie's abuse of the victim. The victim reported that Yazzie had shown him the magazines on several occasions prior and subsequent to the sexual assaults. In addition, the victim testified that Yazzie had used the penis pump both on the victim and himself during the episodes of sexual abuse. The magazines and pump, therefore, were admissible as demonstrative or "real" evidence of the manner in which the assaults were committed.

Second, Yazzie had denied the victim's reports of abuse. The materials, which were found pursuant to a search warrant where the victim described them, corroborated the victim's descriptions of the abuse. For these reasons, the magazines and pump made the victim's accounting of the episodes of abuse more probable and the district court properly admitted them as relevant evidence.

B.

Next, Yazzie claims that if generally relevant under Rule 401, the evidence was prohibited by Rule 404(b) because it was impermissible character evidence. Again, this argument mischaracterizes the purpose for which the materials were introduced. They were not introduced to show that Yazzie was sexually deviant and, therefore, more likely to be a child molester. Nor were they introduced, as the Government suggests, as evidence of "other crimes, wrongs, or acts" to prove "defendant's knowledge, intent, motive and common scheme or plan," pursuant to Fed.R.Evid. 404(b) (emphasis added). Rather, these materials were admitted because the district court found, based on the victim's testimony, that "[the materials] were used to stimulate [the victim], arouse him...." The materials were introduced as demonstrative or "real" evidence, relevant to how Yazzie sexually assaulted the victim. Rule 404(b) is, therefore, inapplicable.

C.

The only question remaining regarding the admission of the magazines and penis pump is whether the evidence should nevertheless have been excluded under Rule 403. Otherwise admissible evidence can still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403; see also United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir.1987). Evidence is unfairly prejudicial if it "makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged." Johnson, 820 F.2d at 1069 (emphasis added).

As discussed above, the materials in question are extremely probative of the victim's credibility and of how the assaults were committed. Next, we consider whether the materials had an unfair prejudicial effect and whether that effect substantially outweighed the highly probative nature of the evidence. Yazzie focuses his unfair prejudice argument on the homosexual implications of the Playgirl magazines. In support of his argument, Yazzie cites cases in which evidence of homosexuality was found to be improperly admitted. See United States v. Gillespie, 852 F.2d 475, 478-79 (9th Cir.1988); Cohn v. Papke, 655 F.2d 191, 194 (9th Cir.1981); United States v. Birrell, 421 F.2d 665, 666 (9th Cir.1970).

In the cases upon which Yazzie relies, however, homosexual issues were raised as collateral to the crimes charged. By contrast, in this case the magazines were introduced as direct evidence of how the assaults were perpetrated and as corroborative evidence of the victim's account of the abuse. It is unlikely they distracted the jury from the defendant's guilt or innocence so as to be unfairly prejudicial. Cf. United States v. McInnis, 976 F.2d 1226, 1231-32 (9th Cir.1992) (allowing evidence of defendant's possession of swastikas and other racist materials to demonstrate racial animus,...