United States v. Lukashov

• Decision Date: 18 September 2012
• Docket Number: No. 10–30348.,10–30348.
• Citation: 694 F.3d 1107
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Alexander LUKASHOV, Jr., aka Aleksandr Lukashov, Jr., Defendant Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

694 F.3d 1107

2012 Daily Journal D.A.R. 13,115

UNITED STATES of America, Plaintiff–Appellee,

v.Alexander LUKASHOV, Jr., aka Aleksandr Lukashov, Jr., Defendant Appellant.

No. 10–30348.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 2012.

Filed Sept. 18, 2012.

Per C. Olsen, Hoevet, Boise & Olsen, P.C., Portland, OR, for the defendant-appellant.

Kelly A. Zusman, United States Attorney's Office, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding.

Before: MARY M. SCHROEDER, ARTHUR L. ALARCÓN, and RONALD M. GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Alexander Lukashov, Jr. appeals his jury conviction for aggravated sexual abuse in violation of 18 U.S.C. § 2241(c). We have jurisdiction under 28 U.S.C. § 1291, and affirm.

I

A

In February 2009, Alexander Lukashov, Jr., who worked as a long-haul truck driver in Portland, Oregon, was in a relationship with Cassedy Filer (“Cassedy”). Lukashov and Cassedy lived together with their two young children and Cassedy's son and daughter from a previous marriage, J.F. and T.F. Her son J.F. was then six years old, and her daughter T.F. was eight. Before Lukashov's departure on a long-haul trip to New York, Cassedy asked him to take J.F. to her relatives in Montana and to take T.F. along on the trip. Lukashov agreed, and he, J.F., and T.F. left Portland on February 5. Lukashov picked up a load in Washington, dropped J.F. off in Montana, and proceeded, with T.F. in his truck, to take his cargo to New York. He drove east to New York and delivered the Washington load there. He picked up another load in New York for delivery in Nevada. He then drove west with T.F. and delivered the New York load in Nevada. There he picked up still another load, destined for Portland. From Nevada, he drove west and north, and returned to Portland with T.F. on February 18.

From the evidence introduced at trial, we see that Lukashov was doing more than just driving his long-haul truck with T.F. after he dropped J.F. off in Montana. Once returned to her home and mother, T.F. told a tale of serial sexual abuse by Lukashov as she traversed the country with him in his truck.

Once Lukashov and T.F. had returned to her home, after Lukashov had left the house, T.F. told her mother that Lukashov had sexually abused her on the trip. T.F. described the abuse and showed her mother bruises that she said Lukashov had given her. When, a few days after T.F.'s return, the police came to the house to arrest Cassedy on an outstanding warrant, Cassedy reported the sexual abuse, and a police officer spoke to T.F. The police took a pair of T.F.'s underwear and a pink blanket from the trip as potential evidence, and arrested Cassedy.

Cassedy's sister, Katie White, took T.F. to CARES Northwest (“CARES”) for an examination. CARES is a medical clinic that specializes in child abuse and is part of a multi-disciplinary child abuse team that is overseen by the district attorney's office. Dr. Linda Lorenz is a pediatrician who evaluates children for abuse and neglect at CARES. To evaluate a child, Lorenz does a medical examination and is assisted by an interviewer to gain more information pertinent to the child's diagnosis and treatment.

Together, Dr. Lorenz and Rachel Petke, a social worker at CARES, evaluated T.F. Lorenz conducted a physical examination of T.F. T.F.'s genital exam and anal exam were normal, but Lorenz found “abnormal” bruises on the inside of one knee and on the side of T.F.'s left hip. Lorenz asked T.F. why her aunt had brought her to CARES. T.F. said that she had gone on a trip with her “dad” and J.F. and that on the trip Lukashov had anally penetrated her and had tried to vaginally penetrate her but “couldn't.” T.F. described the abuse to Lorenz in the language of an eight-year-old, saying, for example, that Lukashov had put his “private part” in “the part where the poop comes out” and that he had tried to put it in her “crotch.” Lorenz also asked T.F. about the bruises on her body. T.F. said that she got the bruise on her knee from Lukashov after he made her take off her pants and underwear and get on her hands and knees, and that she got the bruise on her hip from Lukashov grabbing her hip and “going really fast.” T.F. added that there had been a bruise on her other hip that had faded.

After the physical examination, Petke interviewed T.F. The interview was videotaped, and Dr. Lorenz and a police officer observed it through a mirror. T.F. gave Petke a more detailed account of the sexual abuse than she gave Lorenz. T.F. said that the abuse happened after J.F. was dropped off in Montana and that it happened more than once, in Montana, North Dakota, and Nevada. T.F. said that the abuse took place in the semi-truck and in a hotel room in Nevada. T.F. told Petke, as she had Lorenz, that Lukashov had anally penetrated her and that he had tried unsuccessfully to vaginally penetrate her. She also said that Lukashov had made her perform oral sex on him and ejaculated in her mouth. T.F. gave age-appropriate descriptions, saying, for example, that Lukashov had tried to “shove it in [her] porcupine” and that when Lukashov put his “private part” in her mouth, “white stuff” that tasted “[l]ike foamy” had come out.

B

Lukashov was charged with aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) (Count 1), travel with intent to engage in illicit sexual contact in violation of 18 U.S.C. § 2423(b) (Count 2), and transportation with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) (Count 3). Lukashov pleaded not guilty.

The district court ruled on several evidentiary matters before trial. Lukashov had moved to exclude T.F.'s statements to Dr. Lorenz and Rachel Petke at CARES, and the district court denied this motion. Lukashov also had moved in limine to admit evidence of prior acts of Cassedy Filer to show that she had a pattern of making false allegations against her partner in a relationship. The district court ruled that Lukashov could offer opinion or reputation evidence of Cassedy's bad character for truthfulness but not evidence of specific prior acts. The district court held a Daubert hearing on the proposed testimony of Dr. Lorenz about characteristics of child sex abuse victims, and then held that Lorenz could testify about characteristics that she looks for in child sex abuse victims and that T.F.'s physical examination and statements during the CARES evaluation were consistent with her allegations of sexual abuse.

The trial by jury lasted five days, and resulted in Lukashov's conviction. T.F. testified at trial, and the district court also admitted the video of her interview with Rachel Petke, giving the jury two opportunities to hear T.F.'s version of events. Dr. Lorenz described T.F.'s CARES evaluation, explained that child victims of sexual abuse can have normal genital and anal exams several days after the abuse, and testified that her physical findings and observations of T.F. were consistent with T.F.'s allegations of sexual abuse. Forensic scientist Amy Wilson testified that she found spermatozoa on fabric cuttings from the interior crotch and interior seat areas of T.F.'s underwear given to the police, and that the DNA profile of the spermatozoa matched Lukashov's DNA profile. No seminal fluid was found on the underwear, however, and no spermatozoa or seminal fluid was found on the pink blanket.

Lukashov testified in his own defense, and denied any abuse. An important part of Lukashov's theory of defense was his allegation that Cassedy had coached T.F. into making false allegations against him because Cassedy wanted to gain a tactical advantage in the pending breakup of their relationship. Lukashov testified that after returning from the trip with T.F., he told Cassedy more than once that their relationship was over, that Cassedy asked him to come back, but that in his mind, it was over.

On the third day of trial, at the close of the government's case-in-chief, Lukashov moved for a judgment of acquittal on the ground of improper venue. The parties disagreed about whether venue was a fact issue for the jury or a question of law for the court and whether venue existed under either or both paragraphs of the applicable venue statute, 18 U.S.C. § 3237(a). The district court recognized our precedent that normally it is not for the court to determine venue and that it is error to not give a requested instruction on venue.¹ The district court denied Lukashov's motion because it concluded that the government's evidence, if credited by the jury, was sufficient to show venue under either paragraph of § 3237(a). Because of the varying theories on which venue might be based, the district court decided to submit venue to the jury on each of the possible theories urged by the government, “in an effort to minimize any need for the child victim to testify again in any retrial ordered because of the venue issues.”

Lukashov also moved for a judgment of acquittal for insufficient evidence of purpose on all three counts, and the district court denied this motion as well.

The district court instructed the jury on the elements of each of the charged crimes, and gave the following instruction on venue:

In addition to its burden to prove every element of each of the Counts against the Defendant beyond a reasonable doubt, as I am about to instruct you, the government must also prove by a preponderance of the evidence:

1. that the offense began, continued, or was completed within the District of Oregon; and/or

2. that the offense involved a form of transportation across state lines from, through, or into the District of Oregon; and/or

3. that the offense involved transporting a person from, through, or into the District of Oregon.

The jury found Lukashov guilty on Count 1 and not guilty on Count 2; it did not reach a verdict on Count 3. The...