Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 12-17-2021
Case Style:
United States of America v. James Jones, Jr.
Child Sexual Predator
Case Number: 20-10090
Judge: Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,**
International
Trade Judge.
Court:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
On appeal from The United States District Court
for the District of Arizona
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
San Francisco, CA - Criminal defense lawyer represented defendant with aggravated sexual abuse of a child and abusive sexual contact with a child charges.
Jones contends the district court misapplied Federal Rule of Evidence 412(a) in granting the government’s motion in limine to exclude a proposed line of
cross-examination regarding sexually-explicit text messages found on a mobile
phone belonging to T.H., one of the individuals he was convicted of abusing. We
review a district court’s evidentiary rulings for an abuse of discretion, but we review
de novo the district court’s interpretation of the Federal Rules of Evidence and
whether evidentiary rulings violated a defendant’s constitutional rights. United
States v. Haines, 918 F.3d 694, 697 (9th Cir. 2019).
The only issue is whether the district court denied Jones his Sixth Amendment
right to effective cross-examination of the government’s witnesses by limiting inquiry into the circumstances of T.H.’s disclosure of Jones’s alleged abuse to Eve,
her adult older sister and de facto guardian. We conclude it did not.
We find nothing in the court’s ruling that would have prohibited defense counsel from establishing that the conversation between T.H. and Eve that prompted
T.H.’s disclosure involved conduct for which T.H. could potentially have been disciplined, so long as counsel avoided bringing up the sexual nature of that conduct.
Yet counsel did not attempt to do so. Jones contends the ruling in limine implied that
any questioning at all would violate the court’s order, but nothing in the record suggests that a narrower line of questioning would have been precluded. We therefore
conclude that the district court’s order did not necessarily prohibit Jones from crossexamining T.H. and Eve about the potentially adversarial circumstances surrounding
3
T.H.’s disclosure.
2. Jones contends the district court erred in admitting testimony from government expert Dr. Wendy Dutton about behavioral characteristics of child sex abuse
victims. We review the admission of expert testimony at trial for an abuse of discretion, Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en
banc), overruled on other grounds by United States v. Bacon, 979 F.3d 766 (9th Cir.
2020) (en banc), and will uphold the district court’s ruling unless it is “illogical,
implausible, or without support in inferences that may be drawn from the facts in the
record,” United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014) (citation omitted).
Jones argues the district court improperly relied on United States v. Bighead,
128 F.3d 1329 (9th Cir. 1997), because it predates Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999), which clarified that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) applies not only to “scientific” testimony but also
to expert testimony based on “technical” or “other specialized” knowledge. Kumho
Tire, 526 U.S. at 141. Jones’s argument fails. “[T]o the extent Bighead affirms a
district court’s flexibility to consider which Daubert factors apply to a particular
expert, not consider the factors that are irrelevant, and consider other factors that are
relevant to determining the reliability of the expert’s testimony, it is consistent with
current Supreme Court precedent.” United States v. Halamek, 5 F.4th 1081, 1088
4
(9th Cir. 2021).
Here, the district court concluded that Bighead supported the testimony’s introduction, explained that “expert testimony of this sort is routinely admitted in cases
involving cases of child sex abuse, and its admission is routinely affirmed by the
Ninth Circuit,” and found that “Dutton’s proposed testimony is both relevant and
reliable, and that she’s qualified to opine on the topics that are addressed in the notice
of expert testimony.” While terse, those are the findings Daubert and Kumho Tire
required. See United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1190 (9th Cir.
2019) (per curiam). There is no basis to find an abuse of discretion.1
3. Jones contends the district court erred in refusing to give the parties’ stipulated “dual role” jury instruction for the sexual assault nurse examiner (SANE
nurse), a witness called by the government. The record shows that Jones’s counsel
did not object to the district court’s decision not to give the instruction, so we review
for plain error.2 See United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005).
1
Jones objects to the government’s reliance on non-precedential decisions affirming
admission of Dutton’s testimony. Circuit Rule 36-3(b) allows citation of such dispositions insofar as they have power to persuade. If the district court was persuaded
by those dispositions, that was within its discretion.
2
Jones contends the abuse of discretion standard applies to “a district court’s refusal
to give a requested jury instruction due to insufficient evidence to support the instruction.” See United States v. Ocampo-Estrada, 873 F.3d 661, 665 (9th Cir. 2017).
But failure to object to the district court’s refusal to give a requested instruction
“precludes appellate review,” Fed. R. Crim. P. 30(d), except to the extent there is
5
An error is “plain” when it is “clear and obvious.” Id.
Jones argues that a district court commits plain error by not giving a dual role
instruction for a witness who gives both fact and opinion testimony, and he argues
that the SANE nurse’s testimony about why she did not perform a physical examination of T.H. constituted expert testimony.
Jones identifies no authority from this Court where a medical professional’s
testimony about a treatment decision is found to require a dual role instruction. In
the two cases he cites—United States v. Vera, 770 F.3d 1232 (9th Cir. 2014), and
United States v. Torralba-Mendia, 784 F.3d 652 (9th Cir. 2015)—the Court emphasized that the instruction was warranted because the witnesses were law enforcement
officers. Therefore, even assuming that the SANE nurse’s testimony was expert testimony, in the absence of controlling authority from this Court in the treating medical
professional context, there is no basis for us to find that the district court committed
a “clear and obvious” “plain error.” Cf. United States v. Lane, 857 F. App’x 372,
373–74 (9th Cir. 2021) (for plain error purposes, Vera and Torralba-Mendia “offer
no guidance regarding whether a court must offer a ‘dual role’ instruction” in the
context of expert testimony from treating nurse practitioners).
4. Finally, Jones contends the cumulative effect of the district court’s errors
“[a] plain error that affects substantial rights,” Fed. R. Crim. P. 52(b). Thus, “in the
absence of a timely objection to the jury instructions, we review for plain error.”
United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir. 2009) (cleaned up).
6
deprived him of a fair trial. Because we affirm the district court’s decisions on the
other issues, there is no basis to reverse on this theory.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800