USA v. Velarde

• Decision Date: 02 June 2000
• Docket Number: No. 99-2297,99-2297
• Citation: 214 F.3d 1204
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MEL LAMBERT VELARDE, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1204

214 F.3d 1204 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MEL LAMBERT VELARDE, Defendant - Appellant.

No. 99-2297

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

June 2, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-98-391-JC)

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Albuquerque, New Mexico, for appellant.

David B. Williams (Robert J. Gorence, United States Attorney, and Kathleen Bliss, Assistant United States Attorney, on the brief), Albuquerque, New Mexico, for appellee.

Before BRORBY, ANDERSON, and HENRY, Circuit Judges.

ANDERSON, Circuit Judge.

Mel Lambert Velarde appeals his conviction by a jury on one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. 2241(c), an offense committed within Indian country under 18 U.S.C. 1153. He was sentenced to 135 months imprisonment. Because we conclude that the district court erred in permitting certain expert testimony, and that error was not harmless, we reverse and remand for a new trial.

BACKGROUND

Mr. Velarde, a member of the Jicarilla Apache Indian tribe, ran his family's large ranch near Dulce, New Mexico. In July 1997, he entered into a relationship with another Jicarilla tribe member, Angelita Veneno. Ms. Veneno lived with her three children, Jordan, Shane and L., in a trailer home in Dulce, which is within the Jicarilla Apache Indian Reservation.¹ On some weekends, Mr. Velarde stayed overnight at the trailer home. L., then 8 years old, was accustomed to sleeping with her mother in her mother's bed. When Mr. Velarde spent the night, she had to share her brothers' bedroom. There was testimony that she would get upset when Mr. Velarde visited, because she could not sleep with her mother. In fact, L. testified it made her "mad" when she could not sleep with her mother. R. Vol. III at 53.

Ms. Veneno testified that, until L. was five years old, L.'s father, Levi Vigil, who is also Shane's and Jordan's father, lived in the trailer home with them. He was physically and verbally abusive towards Ms. Veneno, and L. witnessed at least one instance of physical abuse and saw bruises on her mother on a number of occasions. After he moved out of the trailer home, Mr. Vigil had little interaction with his children and apparently refused to acknowledge them. Ms. Veneno's father also intermittently lived at the trailer home. There was testimony that he had a serious alcohol abuse problem.

Mr. Velarde stayed at Ms. Veneno's trailer on the night of February 1, 1998. Mr. Velarde testified that, when he awoke in the middle of the night to use the bathroom, he noticed that the dome light was on in Ms. Veneno's car parked outside. As he usually did when he stayed at Ms. Veneno's trailer, he used Shane and Jordan's bathroom down the hall. Ms. Veneno testified that she was awake when Mr. Velarde left to use the bathroom and awoke when he returned. Id. at 80. Mr. Velarde testified that nothing unusual happened--he simply used the bathroom, noticed the car light on, and returned to bed. He testified he was gone from the bedroom "[c]lose to five minutes." R. Vol. IV at 43.

Approximately a week later, L. told her mother a very different account of the night of February 1. She told her mother that, on that night, she was sleeping in Jordan's bed, on the top bunk of her brothers' bunk bed, as Shane slept below. She testified that she woke up to discover Mr. Velarde pulling her off the bunk bed. She further testified that he took her out into the hall, pulled her pajama shorts down, placed his hand over her mouth, and "put his private part in [her] private part." R. Vol. III at 40. She testified that it hurt a little. She also stated that she kicked at him. L. further stated that after Mr. Velarde got off her, he told her not to tell anyone. She testified that she saw the light on in her mother's car parked outside the trailer home.

At Mr. Velarde's trial, Ms. Veneno testified that L.'s behavior changed after February 1:

[F]or one week she just stayed in her room, she was just quiet, she didn't come out until it was time to go to bed. And then after she told me, she started acting up, like always, crying. She was wetting the bed. She was getting nightmares. She was she found a bottle that she started nursing again, and that's about how how she was.

Id. at 81.

Upon hearing L.'s accusation of sexual abuse, Ms. Veneno called the police, who came to the trailer home and took L.'s statement. The next day, February 9, Ms. Veneno took L. to the San Juan General Hospital in Farmington, New Mexico. Naida Ayers, a nurse, testified that she examined L., took her medical history and asked L. what had happened. She testified that L. told her that Mr. Velarde came into the bedroom, pulled her out into the hall, and "touched her private parts" or "put his private part into her." Id. at 114. Ms. Ayers testified that her physical examination of L. revealed no bruising or tears or other evidence of physical injury. Ms. Ayers testified that L. was cooperative and not frightened during the examination. Dr. Allen Hurt similarly examined L., also found no physical evidence of any injury, and also testified that L. was cooperative and acted normal during the examination. Dr. Hurt testified that the examination neither proved nor disproved that sexual abuse had occurred.

On February 20, L. was examined by Dr. Renee Ornelas, a pediatrician at the University of New Mexico. Dr. Ornelas took a patient history, recorded any unusual symptoms, determined what further tests were needed, and conducted a physical examination. Dr. Ornelas testified she used a colposcope, which enabled her to magnify L.'s genital area. After examining L., Dr. Ornelas agreed with Dr. Hurt that the results of the physical examination were normal. She testified that L. had a "normal" hymen. R. Vol. V at 160.

Dr. Charlene McGiver, a clinical psychologist, interviewed L. and her mother, separately and together, on October 12 and November 2. Dr. McGiver testified that her interviews revealed that L. began having nightmares, experienced episodes of bed-wetting, feared men, and had angry outbursts after the alleged sexual abuse occurred.

A federal grand jury returned an indictment against Mr. Velarde. He pled not guilty. Prior to trial, Mr. Velarde, represented by an appointed public defender, filed a motion to exclude the proposed testimony of Dr. Ornelas that "a child's statement as part of her medical history is consistent with child abuse," and asserted that the government had violated Fed. R. Crim. P. 16 by failing to disclose the bases and reasons for her opinion. R. Vol. I, Tab 13 at 2. The court denied the motion.

Then, represented by new retained counsel, Mr. Velarde filed another motion in limine seeking to preclude or limit Dr. Ornelas's testimony, challenging her proposed testimony that L.'s statements and behavior are consistent with her having been sexually abused. He argued that such testimony was not admissible expert testimony under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993),² and that such testimony would amount to impermissible vouching for the child's veracity. He requested a hearing under Daubert. He also challenged Dr. Ornelas's proffered testimony about the behavioral characteristics of child abuse victims as grounded in psychology and therefore outside of her area of expertise, and asserted that some of her proffered testimony was irrelevant. The district court denied this second motion.

Mr. Velarde then filed a motion to preclude Dr. McGiver's testimony and sought a Daubert hearing to determine the reliability of the proposed testimony. The court denied the motion and determined that an evidentiary hearing was unnecessary.

Approximately a month before trial, the government gave notice that it intended to present testimony from Trudy Harrison, Mr. Velarde's niece, who was prepared to testify that, twenty years before, when she was eight or nine years old, Mr. Velarde had sexually assaulted her. Mr. Velarde filed a motion in limine to preclude the presentation of this evidence, or to continue the case, asserting that the late disclosure of this witness prejudiced him. He also argued that the trial court must conduct a Fed. R. Evid. 403 balancing test to determine if the probative value of the evidence outweighs any prejudicial effect. Without explicitly conducting any Rule 403 balancing, the court held that the government had given adequate notice of its intent to call Ms. Harrison, and ruled that the government could call Ms. Harrison as part of its case-in-chief. Mr. Velarde made numerous additional pre-trial motions relating to the government's proposed expert witnesses, all of which were denied. The court also denied his motions for an independent evaluation of L. and for disclosure of her psychological treatment records.

The case proceeded to trial. On the first day of trial, March 23, 1999, the Supreme Court issued its decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), holding that trial courts must conduct some kind of gatekeeping reliability determination under Daubert with respect to all expert testimony, not just to testimony based upon a particular scientific methodology. Mr. Velarde renewed his request for a Daubert hearing with respect to the proposed testimony of Dr. Ornelas and Dr. McGiver, and referred the court to Kumho. See R. Vol. V at 267. The court subsequently denied his renewed request, stating, "Well, I'm not going to hold a Daubert hearing. I've had this testimony before in trials, and it's not new and novel . . . ." Id. at 342. Accordingly, both Dr. Ornelas and Dr. McGiver testified as government experts. Ms. Harrison also testified that Mr. Velarde had sexually abused her twenty years before, when she was eight or nine years old. Mr. Velarde took the stand and unequivocally denied ever sexually abusing or...