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United States v. Preston

United States Court of Appeals, Ninth Circuit

October 17, 2017

United States of America, Plaintiff-Appellee,
v.
Christopher James Preston, Defendant-Appellant.

          Argued and Submitted June 8, 2017 Pasadena, California

         Appeal 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.

          M. Edith Cunningham (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.

          Robert L. Miskell (argued), Chief, Appellate Section; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

          Before: Stephen Reinhardt and Alex Kozinski, Circuit Judges, and Terrence Berg, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed a conviction on two counts of aggravated sexual abuse of a child, and remanded for a new trial.

         The 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.

         Concurring, 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 young boys.

          OPINION

          BERG, District Judge.

         In 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.

         I. BACKGROUND

         A. Statement of Facts

         In 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.

         That 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.

         Some 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.

         By 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.

         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.

         From 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.

         In 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."

         B. Procedural History

         On 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).

         On 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 totaling $200.

         On 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 memory expert).

         II. STANDARD OF REVIEW

         This 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).

         Where, 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).

         III. DISCUSSION

         Preston 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 alleges.

         A. Testimony Bolstering Rosenberg and Opining on Sex Abuse Generally

         The 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.

         1. Legal Standards

         Just as "[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).

         Additionally, 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.

         2. Gail Bussart's Testimony

         The 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."

         Preston argues-and we agree-that there were three instances of error related to this email during Bussart's testimony:

         First, on direct examination, the government and Bussart had the following exchange:

"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 ...

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