and Submitted June 8, 2017 Pasadena, California
from the United States District Court for the District of
Arizona D.C. No. 4:13-cr-01851-JAS-BPV-1 James Alan Soto,
District Judge, Presiding.
Edith Cunningham (argued), Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Tucson, Arizona; for Defendant-Appellant.
L. Miskell (argued), Chief, Appellate Section; United States
Attorney's Office, Tucson, Arizona; for
Before: Stephen Reinhardt and Alex Kozinski, Circuit Judges,
and Terrence Berg, [*] District Judge.
panel reversed a conviction on two counts of aggravated
sexual abuse of a child, and remanded for a new trial.
panel held that the cumulative effect of the following errors
rendered the defendant's trial fundamentally unfair: (1)
improper witness testimony that bolstered the alleged
victim's credibility and offered opinion on the
credibility of sex abuse allegations in general; (2)
prejudicial propensity evidence in the form of the
defendant's ex-wife's testimony regarding a
child-incest fantasy the defendant allegedly had in 2003; and
(3) prosecutorial misconduct - namely, commenting on the
defendant's decision not to testify, witness vouching,
and misstating the evidence in summation.
Judge Kozinski joined the majority opinion, including Part
III.B, because the district court erred in admitting
testimony about the defendant's masturbation to establish
intent, where the government provided no other rationale for
introduction of this evidence. Judge Kozinski wrote that in
the event of a retrial, he does not read this court's
ruling as precluding the government from identifying a
different basis on which to seek admission of the testimony,
such as to show that the defendant was sexually aroused by
2015, Christopher Preston was convicted on two counts of
aggravated sexual abuse of a child. He appeals, arguing that
evidentiary errors and prosecutorial misconduct rendered his
trial fundamentally unfair. We agree. There were a number of
trial errors and, considering that evidence of guilt was not
overwhelming, their cumulative effect prejudiced Preston.
Accordingly, we REVERSE.
Statement of Facts
1998, Christopher Preston lived with his then-wife Andrea
Preston on the Tohono O'odham reservation in Tucson,
Arizona, where he worked as an electrician. Preston
befriended one of his colleagues, Sean Fox, who had three
stepsons-Timothy, Barry, and Mitchell Rosenberg. Mr. Fox, his
stepsons, and his wife Kathleen (the boys' mother), would
occasionally visit the Prestons' home to socialize. Other
times, Mr. Fox went over with just the boys to strip copper
or play catch.
year, Preston was an assistant coach for a little league
baseball team in northwest Tucson. He arranged for Timothy
Rosenberg ("Rosenberg")-the alleged victim in this
case, who was ten at the time-to join the team. The fields
the team practiced and played on were about an hour's
drive from Sean Fox and Kathleen Rosenberg's home.
Because of this logistical challenge, Rosenberg's parents
generally did not transport him to his games or practices.
Instead, Preston did.
weekends, the team played in tournaments spanning Friday,
Saturday night, and Sunday. On such weekends, Rosenberg would
stay overnight at Preston's home on both Friday and
Saturday. Rosenberg's brother Barry, who was fourteen at
the time, testified that these overnights occurred on ten or
more occasions. When the 1998 Little League season ended,
Rosenberg stopped going to Preston's house. A year or two
later, the Fox/Rosenberg family moved to Kansas and lost
touch with the Prestons.
2012, Rosenberg was a twenty-four-year-old living in Kansas,
experiencing troubles with the law and abusing drugs and
alcohol. On March 12 that year, he was admitted to an
emergency room in Wichita for an anxiety attack. Upon
discharge from the hospital, he went to his mother's
home. In talking with his mother, Rosenberg disclosed that
Preston had molested him in 1998. This was the first time
Rosenberg had revealed this information to anyone. Ms.
Rosenberg called the police and arranged for her son to see
her former therapist, Gail Bussart.
treated Rosenberg from March 2012 to January 2013. During
treatment, Rosenberg told Bussart that Preston sexually
abused him over an eighteen-month period beginning when he
was ten. He did not, however, provide details. Bussart
stopped seeing Rosenberg on January 3, 2013, because she
thought he was lying about his substance abuse.
late March through late April 2013, Tohono O'odham
officers and FBI agents interviewed Rosenberg. Unlike in his
conversations with Bussart, Rosenberg provided them with
details about the alleged molestation. Specifically, he told
a Tohono O'odham officer that Preston molested him when
he was seven or eight years old and that he clearly
remembered it happening twenty times. He added that the abuse
occurred on Preston's living-room couch and that Preston
would put his penis between Rosenberg's legs and direct
Rosenberg to masturbate him until he ejaculated. In addition,
Rosenberg met with two FBI agents and, before the meeting,
sent them a journal that he had kept throughout his treatment
by Bussart (although, according to Rosenberg, Bussart never
read it). In the journal, Rosenberg recorded previously
unrevealed information, including that: Preston and Rosenberg
had fellated one another; Rosenberg was not certain whether
he had been anally penetrated; and Rosenberg once saw Preston
in his room watching pornography with a bottle of lubricant.
October 2012, Tohono O'odham Detective Manny Rodriguez
interviewed Preston about Rosenberg's allegations, which
Preston denied. The interview was recorded. A few days later,
FBI Special Agent Mark Dellacroce interviewed Preston and
administered a polygraph examination to him. This interview
was not recorded. Dellacroce testified at trial that, during
the interview, Preston denied Rosenberg's allegations,
but also stated that he "could not remember"
receiving oral sex from Rosenberg because at that time
"[Preston] was a meth addict."
October 23, 2013 a grand jury returned an indictment charging
Preston with two counts (Counts 1 and 2) of aggravated sexual
abuse of a child, in violation of 18 U.S.C. § 2241(c),
and two counts (Counts 3 and 4) of abusive sexual contact of
a child, in violation of 18 U.S.C. § 2244(a)(5).
August 10, 2015, a six-day jury trial commenced. The only
direct evidence offered at trial was Rosenberg's
testimony. Although Preston did not testify, he presented
evidence of his denials through the testimony of the law
enforcement officials who interviewed him. At the close of
its case, the government conceded that the evidence did not
support a conviction on Count 4, which was dismissed. On
August 18, 2015, the jury found Preston guilty of Counts 1
and 2 and not guilty of Count 3. On October 26, 2015, the
district court sentenced Preston to concurrent terms of 162
months in prison on Counts 1 and 2 and imposed concurrent
terms of lifetime supervised release and special assessments
appeal, Preston argues that the district court and the
prosecutor committed a variety of errors and that these
errors-either independently or cumulatively-deprived him of
his right to a fair trial. The testifying witnesses relevant
to his appeal include Gail Bussart (Rosenberg's
therapist), Agent Dellacroce (the FBI agent who interviewed
Preston), Andrea Preston (Preston's ex-wife), Timothy
Rosenberg (the alleged victim), Barry Rosenberg
(Rosenberg's brother), and Dr. Simpson (Preston's
STANDARD OF REVIEW
Court reviews challenged evidentiary rulings for abuse of
discretion, United States v. Torralba-Mendia, 784
F.3d 652, 659 (9th Cir. 2015), and, if the district court
erred, usually then asks whether the error was harmless,
United States v. Job, 851 F.3d 889, 902 (9th Cir.
2017). Claims of prosecutorial misconduct are also generally
reviewed under the harmless error standard. United States
v. Alcantra-Castillo, 788 F.3d 1186, 1190 (9th Cir.
2015). Where a defendant raises an issue on appeal that was
not raised before the district court, the review is for plain
error. United States v. Pelisamen, 641 F.3d 399, 404
(9th Cir. 2011).
however, as here, there are multiple trial errors,
"'a balkanized, issue-by-issue . . . review' is
far less effective than analyzing the overall effect of the
errors in the context of the evidence introduced at trial
against the defendant." United States v.
Frederick, 78 F.3d 1370, 181 (9th Cir. 1996) (quoting
United States v. Wallace, 848 F.3d 1464, 1476 (9th
Cir. 1988)). This is because the cumulative effect of
multiple trial errors "'can violate due process even
where no single error . . . would independently warrant
reversal.'" Parle v. Runnels, 505 F.3d 922,
927 (9th Cir. 2007) (citation omitted); see also,
e.g., Thomas v. Hubbard, 273 F.3d 1164, 1181
(9th Cir. 2011). In deciding whether the combined effect of
multiple errors prejudiced a defendant we ask whether the
errors stand in "'unique symmetry . . ., such that
[they] amplify each other in relation to a key contested
issue in the case.'" Ybarra v. McDaniel,
656 F.3d 984, 1001 (9th Cir. 2011) (quoting Parle,
F.3d 505 at 933).
raises over fifteen individual trial errors, across seven
different categories. We reverse based on the cumulative
effect of the following: (1) improper witness testimony that
bolstered Rosenberg's credibility and offered opinion on
the credibility of sex abuse allegations in general; (2)
prejudicial propensity evidence in the form of Preston's
ex-wife's testimony regarding a child-incest fantasy
Preston allegedly had in 2003; and (3) prosecutorial
misconduct, namely: commenting on Preston's decision not
to testify, witness vouching, and misstating the evidence in
summation. Because we find cumulative error, we do not decide
the prejudice caused by any of these individual errors, nor
do we reach the merits of the remaining errors Preston
Testimony Bolstering Rosenberg and Opining on Sex Abuse
first set of trial errors we discuss arises from testimony by
Gail Bussart, Barry Rosenberg, and Agent Dellacroce that
suggested Rosenberg's allegations of abuse were
believable or were likely to be true. This set of errors also
involves a portion of Bussart's testimony, offered as lay
opinion, which opined on the general believability of sex
abuse allegations and on whether Rosenberg demonstrated
emotions consistent with sex abuse victims generally.
"[i]t is emphatically the province and duty of the
judicial department to say what the law is, "
Marbury v. Madison, 5 U.S. 137, 177 (1803), it is
emphatically the "province and duty [of the jury] to
determine . . . the weight and the credibility of the
testimony of the witnesses . . . . " Allis v. United
States, 155 U.S. 117, 121 (1894); United States v.
Bonds, 784 F.3d 582, 603 (9th Cir. 2015) ("[W]e
must respect the exclusive province of the jury to determine
the credibility of witnesses . . . .) (citation omitted).
Accordingly, "testimony regarding a witness's
credibility is prohibited unless it is admissible as
character evidence." United States v.
Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998).
while expert witnesses may testify in the form of opinion as
to general matters based on specialized knowledge,
Fed.R.Evid. 702, lay witnesses may not. Fed.R.Evid. 701.
Gail Bussart's Testimony
first portion of Bussart's testimony alleged to be error
arises from an email that she wrote to one of her
supervisors, stating, "[I] saw [Rosenberg] on January 3,
2013, I suspected lies and dishonest behavior at that time .
. . I reinterated [sic] to [Rosenberg] the necessity of clean
and sober behavioral [sic] in order for this therapist to
continue with services." In a written opinion overruling
the government's objection, the district court admitted
this email, under Fed.R.Evid. 608, as Bussart's opinion
of Rosenberg's character for untruthfulness with respect
to drug and alcohol use. The Court added, "[t]he
Government, of course, can cross-examine the therapist on her
opinion as to whether her opinion is limited to lies about
drug use or is made more broadly."
argues-and we agree-that there were three instances of error
related to this email during Bussart's testimony:
on direct examination, the government and Bussart had the
"Q: [When you emailed your supervisor] that you thought
Tim was lying to you . . . did you think he was lying to you
about the alcohol and drugs or did you think he was ...