USA. v. Charley, 98-2087

• Decision Date: 27 August 1999
• Docket Number: No. 98-2087,98-2087
• Citation: 189 F.3d 1251
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WAYNE LEWIS CHARLEY, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1251

189 F.3d 1251 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WAYNE LEWIS CHARLEY, Defendant-Appellant.

No. 98-2087

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

August 27, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. NO. CR-97-335-JC

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant.

Kathleen Bliss, Assistant United States Attorney (John J. Kelly, United States Attorney with her on the brief), Albuquerque, New Mexico, for Appellee.

Before SEYMOUR, Chief Judge, HOLLOWAY, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.

ORDER

This matter is before the court on defendant-appellant's petition for rehearing with suggestion for rehearing en banc. The petition is denied by the panel that rendered the original decision. On their own motion, however, a majority of that panel has determined that amendment of the original opinion, Judge Holloway voting to grant rehearing, is appropriate. Consequently, the majority decision issued on May 7, 1999 is withdrawn. The attached amended opinion is substituted in its place. Judge Holloway concurs in part and dissents in part from the amended decision. His amended dissent is likewise attached.

The rehearing petition and en banc suggestion were circulated to all the active judges of the court. A poll was called. Upon review, the en banc suggestion is denied. Judges Seymour, Ebel, Kelly, Henry, and Murphy would grant rehearing.

ANDERSON, Circuit Judge.

Wayne Lewis Charley was convicted, after a jury trial, of seven counts of sexual abuse of a child in Indian country, in violation of 18 U.S.C. §§ 1153, 2241, 2242, and 2246, and sentenced to life imprisonment. On appeal he contends, inter alia: (1) that Federal Rule of Evidence 414 is unconstitutional and that the admission, under that rule, of evidence of his prior sex offense conviction denied him due process; (2) that the district court erred by permitting five health care professionals, called by the government as lay witnesses, to (i) give expert opinion testimony without furnishing the defense with advance summaries of their testimony as required by Fed. R. Crim. P. 16(a)(1)(E); (ii) give expert testimony without adequate foundation, in violation of Fed. R. Evid. 702; (iii) improperly vouch for the credibility of the alleged victims, in violation of Rule 702; (iv) offer expert conclusions that had not been screened for reliability, in violation of Rule 702; and (v) offer testimony that assumed, as a fact, that the alleged victims were in fact abused, in violation of Fed. R. Evid. 403; and (3) that the evidence was insufficient to convict him on Count I of the indictment. We conclude that the district court erroneously admitted portions of the testimony of the health care professionals, but that these errors were harmless. We therefore affirm Defendant's convictions on Counts II through VII of the indictment. As to Count I of the indictment, we hold that the evidence was insufficient to support a conviction. Accordingly, we reverse the conviction on that count and remand for the entry of a judgment of acquittal on Count I.

BACKGROUND

On April 11, 1997, Dorothy Kalleco took her daughters, 13-year-old D.J. and 10-year-old J.J.,¹ to the Crownpoint Healthcare Facility in Crownpoint, New Mexico. There she told D.J.'s pediatrician, Dr. Edward Junkins, that the girls had disclosed to her that an "uncle" had sexually molested them on numerous occasions over an extended period of time. II R. at 157. Defendant, 65-year-old Wayne Lewis Charley, the girls' uncle by Navajo clan affiliation, was subsequently identified as the alleged abuser.

Dr. Junkins interviewed the girls out of the mother's presence. They provided detailed accounts of anal and genital contact by their uncle both with his fingers and his penis. A physical examination showed no evidence of abuse. Both girls had intact hymens,² and the anal and genital areas appeared normal with no visible bleeding, bruising, scarring, tears, tags or discharge. According to Dr. Junkins, this circumstance was not inconsistent with sexual abuse since children's tissues heal quickly, although there may be residual scarring.

Dr. Junkins testified that the report of abuse had immediate significance to him as a possible unifying explanation for D.J.'s extensive history of atypical and medically puzzling physical complaints and conditions. These included persistent bed-wetting, chronic urinary tract infections, chronic stomach pain, headaches, breathing problems and, recently, numbness of her arm, a burning feeling in her face, and pain in the side of her face, arm and leg. One April entry in D.J.'s medical chart described her as anxious and crying. J.J.'s medical chart did not show a similarly extensive history of complaints, except for persistent bed-wetting.

While the girls were at the Crownpoint Healthcare Facility, Dr. Junkins called the Crownpoint Police Department and reported the incident to Sergeant Daniel Zuni. Officer Zuni responded and conducted a preliminary interview with the girls. In the course of the interview, the girls told Zuni that the sexual abuse had occurred primarily at their residence and secondarily at the Elite Laundromat, located in the Crownpoint Shopping Mall where, beginning in January 1997, Defendant worked several evenings each week from 7:00 to 10:00 P.M. Both locations are within the boundaries of the Navajo Indian Reservation. Officer Zuni also ascertained that Defendant was the alleged perpetrator. He then went to Defendant's residence and determined that Defendant was a member of the Navajo Nation, as were the girls, thus making the alleged crime a federal offense.

Later that same evening, on April 11, criminal investigator Patricia Henry, to whom Officer Zuni had referred the matter, reported the circumstances to Federal Bureau of Investigation (FBI) Agent John D. Tanburg, who then commenced an investigation. On April 30, 1997, Agent Tanburg visited the girls' residence and interviewed the girls in detail. During the visit, Tanburg was accompanied by another investigator who inspected the girls' residence. At some point, Tanburg obtained a warrant, arrested Defendant, and placed him in a secure halfway house.

None of the law enforcement officers were able to discover any direct evidence of the reported incidents. There were no eyewitnesses; there was no physical evidence; and Defendant denied the accusations. However, from the outset of the girls' disclosures, everyone involved, including those providing treatment, was aware that Defendant had been convicted in 1994 for sexually abusing his five-year-old granddaughter, and had been sentenced to one year in prison and three years of supervised release. He was released from federal custody on June 23, 1995.

In May 1997, about a month after the initial disclosures, the girls were referred to Western New Mexico Counseling Services in Gallup for supportive counseling. Joelle Baum, a registered nurse and registered health counselor, who also held a temporary license in art therapy, evaluated the girls and began a course of treatment for J.J. Kristine Lee Carlson, a clinical therapist and Sexual Assault Coordinator for Gallup, New Mexico, began a course of treatment for D.J.

On June 4, 1997, the girls were seen and examined by Dr. Renee Ornelas, a pediatrician at the University of New Mexico. Like Dr. Junkins, Dr. Ornelas also found the girls' genital and anal areas to be normal, evidencing no signs of abuse. But, after receiving information from Ms. Kalleco about the girls' medical history and reports of abuse, and after interviewing the girls, Dr. Ornelas concluded that the girls had been sexually molested.

On the same day as the Ornelas examination, June 4, 1997, a federal grand jury returned a seven-count indictment against Defendant, charging him with four counts of sexual abuse of a child in Indian country, in violation of 18 U.S.C. §§ 1153, 2242, and 2246, and three counts of aggravated sexual abuse of a child in Indian country, in violation of 18 U.S.C. §§ 1153, 2241, and 2246.³ Count I of the indictment charged Defendant with abusing D.J. "[o]n or about October 1995." I R., Tab 9. Counts II through VII all charged Defendant with abusing either D.J. or J.J. "[o]n or about March 1997." Id.

Well before trial in this case, the government notified defense counsel that it would call as witnesses certain health care professionals who had examined, counseled, or treated D.J. and/or J.J. In connection with that prospective testimony, the government also provided defense counsel with voluminous medical information and associated notes and records. However, it did not designate any of these witnesses as experts and, accordingly, did not provide defense counsel with any summaries of expert witness testimony pursuant to Fed. R. Crim. P. 16(a)(1)(E).

On October 24, 1997, the Friday preceding the start of trial, defense counsel filed a motion in limine seeking to prevent any of the designated health care professionals from offering expert opinion testimony regarding whether D.J. or J.J. were in fact sexually abused or were being treated for sexual abuse. The district court addressed the motion on October 27, 1997, the first day of trial, and denied it on the government's representation that the witnesses in question were not being called as experts under Fed. R. Evid. 702, but as lay or fact witnesses under Fed. R. Evid. 701. After a colloquy with defense counsel regarding how counsel could preserve his objections, the court indicated that it recognized defense counsel's continuing objection to the testimony of the health care professionals.⁴

The trial began that afternoon, and lasted three days. The government called...