United States v. Cruz-Benavente
| Docket Number | 22-50078 |
| Decision Date | 20 July 2023 |
| Parties | United States of America, Plaintiff-Appellee, v. Damion Edward Cruz-Benavente, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-157-1
Before WIENER, SOUTHWICK, and DUNCAN, Circuit Judges.
Defendant-Appellant Damion Edward Cruz-Benavente ("Cruz") was sentenced to life imprisonment for sexually abusing a minor ("D.A."). Cruz appeals his convictions under Counts One and Two, "aggravated sexual abuse by force" and "sexual abuse by threat." 18 U.S.C. §§ 2241(a), 2242(1) (emphasis added). He challenges several evidentiary decisions at trial: (1) the admission of various out-of-court statements by D.A., (2) the admission of statements made by a detective who interviewed D.A., and (3) the limitation of Cruz's ability to cross-examine D.A. with myriad Facebook posts. Cruz also invokes cumulative error. We affirm his conviction.
Cruz lived with D.A. while dating her mother. Cruz's sexual abuse of D.A. is well-documented, but Cruz denies using force or threat. The relevant facts are presented alongside testimony at trial, the intricacies of which are the subject of this appeal.
The Government presented D.A. as a key witness, who testified that she was sexually abused by Cruz for years. Cruz first molested her when she was 11 years old. He would go on to have sex with D.A. countless times; on occasion, while she was gagged. D.A. testified that she did not tell anyone about Cruz's abuse because she feared him. Cruz told her that if she disobeyed him, he would hurt her sister, her friends and even himself. D.A. testified that Cruz sometimes acted violently, once swinging a machete near her for no apparent reason and, another time, smashing her belongings out of jealousy. Cruz stopped abusing D.A. after he found out she was pregnant. At the age of 14, D.A. gave birth to her son and she long hid the fact that Cruz was the father.
On cross-examination, D.A. admitted that she misled investigators about who had impregnated her. In May 2019 Child Protective Services (CPS) began investigating D.A.'s mother because some of her children were exposed to methamphetamine. When CPS investigators asked D.A. if there was sexual abuse in the home, D.A. denied any abuse. When CPS later discovered that D.A. was a mother, a court hearing was held to determine paternity. Before the hearing, D.A. began to worry that Cruz might have custodial rights to her son, so she finally decided to report his abuse to the police.
Cruz's counsel also attempted to convey that D.A. did not fear or feel threatened by Cruz. For example, the defense presented evidence of D.A.'s good grades and good conduct at school. D.A. affirmed that she and Cruz had outings together; that she rode a roller coaster with Cruz; and that she posted on Facebook, "I love my life and all who are apart [sic] of it!!" which was followed by "#Nevergivingitup #igotitall Share if you love your life." Cruz also established that D.A.'s grandmother observed no threats and saw nothing that suggested D.A. was upset. D.A.'s friend noted that D.A. did not confide to her that Cruz was hurting her, that D.A. appeared happy, and that D.A. lied about her son's paternity. D.A. testified that Cruz had not been violent or threatening before he sexually assaulted her in Florida, and that she did not tell her family, teachers, school nurses, friends, or police that Cruz abused or threatened her.
In response, the Government offered three witnesses to rehabilitate D.A.'s credibility: Detective Tanya Lawson, Family Advocate Lori Nipper, and Investigator Phillip Oaks. D.A. had previously spoken to each of them during interviews.
Lawson, a detective with the Killeen Police Department, interviewed D.A. in November 2020. At trial, Lawson testified that D.A. recounted a sexual assault by Cruz in Florida as they packed to leave for Big Bend National Park, and then again in their kitchen at Big Bend. D.A. told Lawson that, from then on, Cruz sexually abused her almost daily, and that Cruz was forceful and made threats. She said that she was afraid of his perceived mental issues and knives. Cruz objected to Lawson's testimony as hearsay, which the court overruled. The Government's position was that the statement was admissible as consistent with D.A.'s cross-examined testimony. Then, the court expressly granted Cruz's request for a "running objection" on hearsay "so [the court and the parties] don't have . . . interruptions" to each question.
The Government's next rehabilitative witness, Nipper, interviewed D.A. after the 2019 CPS investigation turned up allegations of sexual abuse. Nipper testified that D.A. detailed her rape by Cruz in Florida and in the kitchen in Big Bend. Nipper's testimony was short on detail, saying only that "there were multiple times where [D.A.] said that [Cruz] forcefully turned her or forcefully inserted his penis into her vagina . . . [and] that he would threaten either to harm himself, her, her family, her friends." Cruz voiced no further objection during Nipper's testimony.
The Government's last rehabilitative witness was Oaks, who had interviewed Cruz twice[1] and D.A. once. Much of D.A.'s recorded interview was played for the jury. D.A.'s statements largely mirrored her trial testimony, but the recording included some additional events such as an attempted anal penetration by Cruz. Throughout the interview, Oaks made encouraging statements to D.A. such as, "You're doing a fantastic job . . . you are going down a straight path and everything is lining up." He also stated that Cruz was inconsistent while D.A. was consistent.
Cruz first raised several objections to Oaks' interview of D.A., including that defense counsel received late notice of the Government's intention to offer the recording at trial. The parties had a lengthy discussion with the court, which ultimately led to a recess for two hours to permit Cruz to review the recording. Following that review, Cruz made additional objections: He objected to the first one-minute and forty-seconds of the recording as hearsay-a speech that included Oaks' opinions, which the court agreed to redact. Cruz also referred to his earlier "running objection" to hearsay. Cruz further objected to Oaks's statements as improperly bolstering D.A. and providing improper opinions about her strength, courage, and credibility. The district court denied that objection, because Oaks's statements served as context for the jury that would help them assess credibility. All other objections were ultimately overruled.
At the close of the trial, the jury convicted Cruz on all counts. He was sentenced to life imprisonment for Counts One and Two and to 180 months of imprisonment for Count Three, to run concurrently. Cruz timely appealed. FED. R. APP. P. 4(b)(1)(A).
We review the district court's admission of D.A.'s out-of-court statements for plain error. To prevail, Cruz must show an error that had not been intentionally relinquished or abandoned, that was clear or obvious, and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). We may correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id.
As to Investigator Oaks's statements during the recorded interview, we review the district court's decision on hearsay for abuse of discretion. United States v. Polidore, 690 F.3d 705, 719 (5th Cir. 2012). We apply the same standard for the admission of lay opinion testimony. United States v. Yanez Sosa, 513 F.3d 194, 199-200 (5th Cir. 2008). Review of evidentiary rulings in criminal trials is heightened and subject to harmless error review. United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008).
Finally, we review de novo the district court's limitation on cross-examination as a possible Sixth Amendment violation. United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010). If there is no violation, we review the limitation of cross-examination for abuse of discretion, subject to a harmless error analysis. Id.
Cruz challenges the admission of prior statements by D.A. from three sources: a recording of her interview with Investigator Oaks; testimony from Detective Lawson about her interview with D.A.; and testimony from Family Advocate Nipper about her interview with D.A. The government offered all three statements as prior consistent statements to rehabilitate D.A. following Cruz's cross-examination attack of her credibility.
The problem here is that all of D.A.'s challenged statements were made after 2019, when it was established that D.A. had motive to fabricate testimony to maintain custody of her child. Federal Rule of Evidence 801(d)(1)(B) "permits the introduction of a declarant's consistent out-ofcourt statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." Tome v. United States, 513 U.S. 150, 167 (1995) (emphasis added). The statements offered to rehabilitate D.A. were made after her alleged motive to fabricate arose. The parties agree on appeal that they were improperly presented.
As a preliminary matter, the Government contends that Cruz affirmatively waived this argument, rendering it unreviewable by this court, when Cruz elicited D.A.'s "motivation to fabricate" but failed to appropriately object to the admission of the recorded statements under Rule 801(d)(1)(B)(i). We are unpersuaded.
Waiver requires "an affirmative choice by the defendant to...
To continue reading
Request your trial