USA v. PABLO
| Decision Date | 16 November 2010 |
| Docket Number | No. 09-2091.,09-2091. |
| Citation | 625 F.3d 1285 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jonathan PABLO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Mark T. Baker, Long, Pound & Komer, P.A., Santa Fe, NM, for Defendant-Appellant.
Steven Yarbrough, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.
Before BRISCOE, Chief Circuit Judge, EBEL and HOLMES, Circuit Judges.
This appeal arises out of Jonathan Pablo's conviction by a jury for vaginal rape, kidnapping, assault resulting in serious bodily injury, and carjacking. Pablo was tried with a codefendant, Isaac Gordo, whom the jury convicted on similar counts. Here, we are faced only with Pablo's appeal, and he raises three challenges to his convictions: (1) that the district court deprived him of his confrontation rights under the Sixth Amendment by admitting testimony of a DNA expert, Kortney Snider, when that expert relied on reports prepared by analysts not called to testify and conveyed the contents of those reports to the jury; (2) that the prosecutor and district court impermissibly interfered with his right to present a defense by raising the specter of self-incrimination to dissuade two defense witnesses, Zachary and Alzado Gordo, from testifying; and (3) that the district court erred by excluding certain evidence under Federal Rule of Evidence 412. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons that follow, we AFFIRM. 1
The events that led to the rape charges against Isaac Gordo and Jonathan Pablo began on the night of January 29, 2005, and extended into the morning of January 30. 2 We start our recitation of the facts by noting that throughout the course of the following events, all parties involved drank at least some alcohol, but the defendants consumed particularly large quantities.
The rape victim, L.R.H., who was sixteen at the time, and the defendants first encountered each other at a local dance in Nageezi, New Mexico. L.R.H. attended the dance accompanied by her boyfriend, Dave Keetso, and his cousin. The defendants separately attended this dance and hung out with Isaac's cousins, Zachary and Alzado Gordo. Although Isaac Gordo testified that L.R.H. spoke to him at the dance and Dave Keetso testified that he encountered the defendants at the dance, little interaction occurred between these two groups until after the dance ended. 3
Snow fell on the night of the dance, and by the end of the dance, the roads had become snow-covered. When Dave left the dance, he drove his cousin's Chevy Cavalier with his cousin in the passenger seat and L.R.H. sitting in the back seat, but Dave stopped multiple times so his cousin could go to the bathroom. Upon stopping just before a local convenience store, Isaac Gordo, Jonathan Pablo, Alzado Gordo, and Zachary Gordo pulled up in Isaac's Ford Focus. After the parties conversed for a brief period, both groups drove up the road where everyone except Dave Keetso and L.R.H., who had fallen asleep in the back of the Cavalier, consumed more alcohol. Thirty minutes later, the groups continued down the road until Isaac's Ford Focus became badly stuck in the mud and snow.
When Isaac's car became stuck, Dave Keetso agreed to drive his cousin's Cavalier to pick up his own truck to pull the Focus out. Dave, his cousin, L.R.H., and Isaac drove together to pick up the truck and chains. 4 When they arrived at the truck, L.R.H. woke up and climbed into Dave's truck, as did Isaac. Dave's cousin drove his Cavalier back alone. After some delay, they returned to where the Ford Focus had become stuck, hooked up the chains, and pulled it out.
Once Dave pulled Isaac's car out of the ditch, Isaac asked Dave to follow him in his truck on the dirt road at least until where the pavement began again. 5 Presumably, Isaac was accompanied in his Ford Focus by Pablo and his cousins, Zachary and Alzado Gordo. Dave began to follow Isaac to the paved road but Isaac stopped about a mile before where the pavement begins and signaled for Dave to stop as well, which he did. While they were stopped, Dave exited his car to unlock his four wheel drive. At this point, Isaac approached Dave from behind and began choking him before hitting him with a shovel. Although Dave Keetso also testified that Pablo attacked him and hit him with a shovel, the jury convicted him only of assault resulting in serious bodily injury; it acquitted him on the charge of assault with a dangerous weapon for his alleged use of a shovel in the altercation.
As Dave Keetso remained on the ground recovering from the defendants' beating, the defendants jumped into Dave's truck and drove away, with L.R.H. still asleep in it. L.R.H., who had fallen back asleep, awoke to find herself stuck between Isaac and Pablo, which left her “in shock and just frightened.” (Supp. R. vol. 3 at 425:21-22.) Although L.R.H. attempted to climb out of the truck, Pablo prevented her from doing so. Isaac then drove farther down the road before stopping to go to the bathroom along the road. L.R.H. again attempted to escape by driving away as Isaac and Pablo went to the bathroom, but Isaac foiled her efforts.
Eventually Isaac got the car stuck in a deep ditch a bit farther down the road. L.R.H.'s testimony indicated that a gray car matching the description of Isaac's Ford Focus was present for at least some time when Isaac got the truck stuck, and if it were Isaac's Ford Focus, it was likely driven by Isaac's cousins Alzado and Zachary Gordo. Isaac and Pablo left the truck for a brief period, and L.R.H. again attempted to drive away with no success. Isaac then returned to the truck, got in, said, “Hey, baby,” violently pulled down L.R.H.'s pants, mounted her, and forcefully penetrated her vagina with his penis. ( Id. at 429-31.) Afterwards, Isaac left the truck, and Pablo climbed in. He said, “Come on, baby,” put on a condom, mounted her and penetrated her vagina despite her efforts to resist. ( Id. at 431-32.) L.R.H. also testified that Pablo forced her to perform oral sex, but the jury acquitted Pablo on this charge.
Based on these events, Isaac Gordo and Jonathan Pablo were both charged with vaginally raping L.R.H., kidnapping L.R.H., assaulting Dave Keetso with a dangerous weapon, assaulting Dave Keetso such that serious bodily injury resulted, and carjacking. Pablo was also charged with sexual assault for allegedly forcing L.R.H. to perform oral sex on him. The jury convicted Gordo on all counts. It convicted Pablo on all counts except, as noted, on the charges of assault with a deadly weapon and sexual assault via forced oral sex. Pablo was sentenced to a term of 200 months' imprisonment for the sexual assault, kidnapping, and carjacking convictions to run concurrently with a term of 120 months' imprisonment for the assault conviction. Pablo now appeals his convictions.
As part of the state crime lab's analysis of the evidence in this case, lab analyst Kristin Dick prepared a DNA report and lab analyst Benita Boyd prepared a serology report. Originally, the government intended to call Ms. Dick and Ms. Boyd to testify against Pablo; however, they ultimately called only Kortney Snider, another lab analyst, to testify as an expert witness regarding the DNA analysis and serology analysis performed by the crime lab. 6 Ms. Snider's testimony conveyed to the jury that the DNA analysis connected Pablo to DNA found on L.R.H.'s genitalia as well as to a condom found at the scene of the rape.
On appeal, Pablo argues that Ms. Snider's testimony violated his confrontation rights. Pablo points out that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), restricts the admissibility of out-of-court testimonial statements against a defendant. Under Crawford, out-of-court testimonial statements may be admitted against a defendant only if either the declarant of those statements testifies at trial or the declarant is now unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id. at 54, 124 S.Ct. 1354. In this case, Pablo argues that under the Supreme Court's recent decision in Melendez-Diazzz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), which held that a forensic analyst's statements in an affidavit that drugs connected to a defendant were cocaine constituted out-of-court testimonial statements, Ms. Dick's DNA report and Ms. Boyd's serology report also necessarily contained out-of-court testimonial statements. He further argues that the government introduced these out-of-court testimonial statements against him through Ms. Snider's testimony, which he claims simply parroted Ms. Dick's and Ms. Boyd's reports. Pablo points out that neither Ms. Dick nor Ms. Boyd were called to testify against him and, even assuming they were unavailable to testify, he never had a prior opportunity to cross-examine these declarants. Therefore, according to Pablo, Ms. Snider's testimony deprived him of his constitutional right to cross-examine Ms. Dick and Ms. Boyd.
The government counters that Ms. Snider testified as an expert and simply based her opinions on Ms. Dick's and Ms. Boyd's reports. It argues that Federal Rule of Evidence 703 permits this type of testimony, and, at least prior to Melendez-Diaz, we have allowed experts to rely on the notes of other lab technicians. See United States v. Davis, 40 F.3d 1069, 1075 (10th Cir.1994). The government argues that this is precisely what Ms. Snider did, and Melendez-Diaz has not changed our law to prohibit an expert from relying on another's notes.
For the reasons that follow, we find no reversible error.
[1] Pablo concedes that ...
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