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Date: 08-08-2021

Case Style:

United States of America v. LAWRENCE HALAMEK

Case Number: 19-10366

Judge: Milan Dale Smith Jr

Court: UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Plaintiff's Attorney: Carin C. Duryee (argued), Assistant United States Attorney;
Christina M. Cabanillas, Deputy Appellate Chief; Michael
Bailey, United States Attorney; United States Attorney’s
Office

Defendant's Attorney:


San Francisco, California - Criminal defense Lawyer Directory


Description:

San Francisco, California - Criminal defense lawyer represented defendant with a transporting a minor with intent to engage in criminal sexual activity charge.



In August 2016, Lawrence Halamek lived in Safford,
Arizona with his then-wife, Amanda, their daughter, L.H.,
Amanda’s daughter, M.L., and Amanda’s son, N.R.
Halamek’s cousin also lived in Safford with her husband and
stepdaughters, one of whom was eleven-year-old S.K., on
the same street as the Halameks. Over time, S.K. and E.K.
spent more and more time at the Halamek house; by
December 2016, they were at the Halamek house almost
every weekend. S.K. and E.K. also came to the Halamek
house after school and did their homework there. During
this time, Amanda noticed disturbing physical contact
between Halamek and S.K.: Halamek laying his head in
S.K.’s lap, Halamek’s arms around S.K., and S.K. laying on
Halamek’s chest. S.K. testified that Halamek frequently
referred to her as his girlfriend and called her cute or
beautiful.
On December 4, 2016, Halamek and Amanda took M.L.,
N.R., L.H., E.K., and S.K. to Mount Graham to celebrate
Halamek’s birthday. On this trip, S.K. told Halamek that she
was struggling with her mental health and was
contemplating suicide due to physical and emotional abuse
UNITED STATES V. HALAMEK 5
from her stepmother. In response, Halamek suggested that
they run away together the next morning. The next morning,
Halamek told Amanda that he was going to get breakfast for
them, but instead, he picked S.K. up from her normal bus
stop. They drove out of Safford and stopped at a
convenience store, where Halamek purchased several cases
of beer and cans of Bud Light Clamato (which was S.K.’s
preferred type of alcohol). Around 10:00 a.m., after crossing
the border into New Mexico, Halamek drove off-road to find
a spot to set up camp, and the truck he was driving became
stuck. They laid a blanket out on the ground and drank some
of the alcohol Halamek had purchased. S.K. testified that
Halamek was fidgeting with her hand when she felt her hand
“touch something that didn’t really feel normal.” When she
looked over, she saw Halamek’s penis. S.K. then got up and
walked some distance away. Halamek followed her and
apologized. That night, Halamek and S.K. slept in the truck.
S.K. testified that Halamek placed his hands under her shirt
and bra, and then under her pants and underwear, and
touched her vagina.
Meanwhile, an Amber Alert had gone out that indicated
S.K. and Halamek might be together. The next morning,
December 6, 2016, the police department received several
tips from individuals who reported seeing the pair walking
along the side of the highway back toward Arizona. New
Mexico police apprehended Halamek and S.K., extradited
Halamek to Arizona, and took S.K. to the hospital. Halamek
was charged with one count of transporting a minor with
intent to engage in criminal sexual activity, in violation of
18 U.S.C. § 2423(a), and one count of traveling with intent
to engage in illicit sexual conduct, in violation of 18 U.S.C.
§ 2423(b). Halamek was also charged in state court with
custodial interference. He was convicted of the state crime
6 UNITED STATES V. HALAMEK
of custodial interference and served his sentence for that
conviction while awaiting trial on the federal charges.
Prior to trial, the Government noticed its intent to call
Karen Blackwell, a child forensic interviewer with the FBI,
as an expert on the practice of “grooming” children for
sexual abuse, which includes “giving a child gifts and
support, treating a child as special, isolating a child from
his/her social support, gradually increasing sexually explicit
talk about sex through jokes, . . . and gradually desensitizing
the child to touch (e.g., cuddling, tickling, wrestling,
hugging).” The basis for her testimony was her experience
interviewing over 3,000 victims of child abuse, the majority
of whom were victims of child sexual abuse. Blackwell also
had received numerous hours of training. Defense counsel
did not object to Blackwell providing expert testimony.
The Government also noticed its intent to introduce
Halamek’s prior acts of molestation through testimony from
M.L., Halamek’s stepdaughter, pursuant to Federal Rule of
Evidence 414. Rule 414(a) states: “In a criminal case in
which a defendant is accused of child molestation, the court
may admit evidence that the defendant committed any other
child molestation. The evidence may be considered on any
matter to which it is relevant.” Halamek objected to the
introduction of this evidence, but the district court issued an
order allowing its admission. M.L. testified that Halamek
repeatedly sexually abused her, but the frequency of the
abuse decreased once S.K. started spending more time at the
Halamek house. N.R. testified that he witnessed Halamek
abusing M.L. The court instructed the jury that it “may use
this evidence to decide whether the defendant committed the
act charged in the indictment,” but that it may not “convict
the defendant simply because he may have committed other
unlawful acts.”
UNITED STATES V. HALAMEK 7
The jury found Halamek guilty of both counts charged.
The presentence investigation report stated that the sentence
for Count 1 was a term of imprisonment 10 years to life, and
the sentence for Count 2 was not more than 30 years’
imprisonment. The PSR applied a two-level guidelines
increase “because the minor was in the custody, care, or
supervisory control of the defendant” pursuant to U.S.S.G.
§ 2G1.3(b)(1)(B). Along with the other guideline level
increases, the total offense level was 41. In the criminal
history section, the PSR applied two criminal history points
for Halamek’s conviction for custodial interference in
Arizona state court. Including these two points, the PSR
calculated five total criminal history points, which placed
Halamek in the criminal history category of III. The PSR
concluded that “[b]ased upon a total offense level of 41 and
a criminal history category of III, the guideline
imprisonment range is 360 months to life. USSG
§ 5G1.2(b). However, the statutory maximum for Count 2
is 30 years.” The district court sentenced Halamek to
420 months’ (35 years’) imprisonment on each count, with
the terms to run concurrently.
STANDARDS OF REVIEW
Admission of expert testimony to which there is no
objection at trial is reviewed for plain error. United States v.
Wells, 879 F.3d 900, 925 (9th Cir. 2018). We review the
admission of prior acts of child molestation pursuant to Rule
414 for abuse of discretion. Unites States v. LeMay,
260 F.3d 1018, 1022 (9th Cir. 2001). In the sentencing
context, “[w]e review the district court’s factual findings for
clear error, its construction of the United States Sentencing
Guidelines de novo, and its application of the Guidelines to
the facts for abuse of discretion.” United States v. Harris,
— F.3d —, 2021 WL 2346061, at *2 (9th Cir. 2021).
8 UNITED STATES V. HALAMEK
“Objections to a sentence not presented to the district court
generally cannot be raised for the first time on appeal.
However, imposition of an erroneous sentence may be
reviewed for plain error.” United States v. Vieke, 348 F.3d
811, 813 (9th Cir. 2003) (internal citation omitted).
ANALYSIS
A.
We first address the question of whether the district court
erred by admitting Karen Blackwell’s expert testimony on
the topic of grooming for sexual abuse.
Pursuant to Federal Rule of Evidence 702:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier
of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
UNITED STATES V. HALAMEK 9
In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the Supreme Court listed several
factors for assessing the reliability of scientific expert
testimony under Federal Rule of Evidence 702. Among
these were whether the expert’s theory or technique has been
tested; whether it “has been subjected to peer review and
publication”; the “potential rate of error” “of a particular
scientific technique”; and the general acceptance of a theory
or technique within the scientific community. 509 U.S.
at 593–94. Then, in Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999), the Supreme Court discussed how to
apply Daubert to expert testimony that was not scientific in
nature:
We conclude that Daubert’s general
holding—setting forth the trial judge’s
general “gatekeeping” obligation—applies
not only to testimony based on “scientific”
knowledge, but also to testimony based on
“technical” and “other specialized”
knowledge. We also conclude that a trial
court may consider one or more of the more
specific factors that Daubert mentioned when
doing so will help determine that testimony’s
reliability. But, as the Court stated in
Daubert, the test of reliability is “flexible,”
and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all
experts or in every case. Rather, the law
grants a district court the same broad latitude
when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability
determination.
Id. at 141–42 (citation omitted).
10 UNITED STATES V. HALAMEK
After Daubert, but before Kumho Tire, we confronted
the question of how to evaluate experiential expert
testimony. United States v. Bighead, 128 F.3d 1329, 1330
(9th Cir. 1997). In Bighead—which was also dealt with
child sexual abuse—the Government presented expert
testimony about delayed disclosure of incidents of sexual
abuse to rebut the defense’s impeachment of the victim. Id.
The testifying expert had conducted interviews of
approximately 1,300 purported victims of child abuse and
drew on that experience to testify about “typical
characteristics” of this class of individuals. Id. We held that
“Daubert’s tests for the admissibility of expert scientific
testimony do not require exclusion of expert testimony that
involves specialized knowledge rather than scientific
theory.” Id. The district court was not required to exclude
the expert in Bighead on the basis of the Daubert factors
because her “testimony consisted of her observations of
typical characteristics drawn from many years[’] experience
interviewing many, many persons, interviewed because they
were purported victims of child abuse.” Id.
The rule stated in Kumho Tire that Daubert’s general
holding applies to non-scientific expert testimony conflicts
with Bighead’s categorical exemption of non-scientific
testimony from the scope of Daubert. However, Bighead is
consistent with the Court’s statement in Kumho Tire that
“Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Kumho
Tire, 526 U.S. at 141. To the extent Bighead could be read
to state that a district court should never consider Daubert
factors when fulfilling its gate-keeping role for expert
testimony, Kumho Tire overruled it. But to 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
UNITED STATES V. HALAMEK 11
factors that are relevant to determining the reliability of the
expert’s testimony, it is consistent with current Supreme
Court precedent.
Halamek asserts that Blackwell’s experience
interviewing children did not qualify her to testify about the
behavior of abusers, because her “experience does not
include interviewing adult sex offenders or providing
therapeutic services to either victims or offenders.”
However, Blackwell’s interviews with children included the
children’s statements about the behavior of their abusers.
Blackwell testified that she has studied the process of
victimization because “we need to explore those things in the
interview so that we have the full, entire context of what has
happened, not just the assault or the incident, that we need to
really understand everything that is going on around that.”
Extensive experience interviewing victims can qualify a
person to testify about the relationships those victims tend to
have with their abusers.
Halamek also contends that Blackwell’s testimony was
“neither probative nor helpful [to the jury]” because “[m]uch
of Blackwell’s testimony about grooming involved common
sense observations that the government could have simply
argued in closing.” Our circuit appears not to have
addressed the probative nature of expert testimony about
grooming for child sexual abuse in a published opinion.
However, several other circuit courts of appeal have held
that admitting such testimony is not an abuse of discretion
because the testimony “illuminate[s] how seemingly
innocent conduct . . . could be part of a seduction technique.”
United States v. Romero, 189 F.3d 576, 585 (7th Cir. 1999);
see also United States v. Batton, 602 F.3d 1191, 1201 (10th
Cir. 2010); United States v. Hitt, 473 F.3d 146, 158–59 (5th
Cir. 2006). We find the reasoning of the opinions of our
12 UNITED STATES V. HALAMEK
sister circuits persuasive. Blackwell’s testimony explained
for the jury that Halamek’s behavior with S.K.—such as
cuddling and paying special attention to her—that could be
innocent parental behavior, could actually have been part of
his plan to engage in illicit sexual activity with her.
Halamek’s contention that Blackwell’s testimony was not
probative or helpful to the jury lacks merit, and it was not
erroneous for the district court to admit the evidence.
Finally, Halamek takes issue with Blackwell’s statement
that her opinion was based in part on studies conducted by
the Behavioral Analysis Unit of the Federal Bureau of
Investigation (FBI), because Blackwell did not discuss the
methods or findings of these studies. However, in the
Government’s notice of intent to call Blackwell as an expert,
it explained that Blackwell’s opinion would be based on the
definition of grooming used by the Behavioral Analysis Unit
of the FBI. The Government’s notice (and Halamek’s lack
of objection to it) was presumably what the district court
relied on and implicitly adopted as its findings on the
reliability and helpfulness of Blackwell’s testimony.
Moreover, Halamek cites no authority for the proposition
that Blackwell’s use of a definition from the FBI’s
Behavioral Analysis Unit needed further explanation before
the district court could determine its reliability. We
therefore hold that Blackwell’s testimony was relevant,
reliable, and properly admitted.
B.
Federal Rule of Evidence 414 states: “In a criminal case
in which a defendant is accused of child molestation, the
court may admit evidence that the defendant committed any
other child molestation. The evidence may be considered on
any matter to which it is relevant.” Fed. R. Evid. 414(a).
This creates an exception to the general rule that prior bad
UNITED STATES V. HALAMEK 13
acts cannot be introduced against a defendant at trial to show
that he committed the charged crime. See Fed. R. Evid.
404(b). However, Rule 414 evidence must still be excluded
under Rule 403 if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R.
Evid. 403. We have stated that Rule 414 evidence is
inherently strong, so “a court should pay ‘careful attention
to both the significant probative value and the strong
prejudicial qualities’ of that evidence.” LeMay, 260 F.3d at
1027 (quoting Rudy-Glanzer v. Glanzer, 232 F.3d 1258,
1268 (9th Cir. 2000)). The LeMay court articulated factors
that trial judges must consider when determining whether
Rule 414 evidence should be excluded pursuant to Rule 403:
(1) the similarity of the prior acts to the acts
charged, (2) the closeness in time of the prior
acts to the acts charged, (3) the frequency of
the prior acts, (4) the presence or lack of
intervening circumstances, and (5) the
necessity of the evidence beyond the
testimonies already offered at trial.
Id. at 1027–28 (internal quotation marks omitted).
The district court determined that M.L.’s molestation
was similar to S.K.’s because they were approximately the
same age, and the “alleged acts of molestation” were
“similar”; M.L. stated that Halamek forced her to “rub” and
“suck” his penis. Furthermore, the district court stated that
the acts were alleged to be close in time to Halamek’s
offenses against S.K., and that M.L.’s testimony would be
probative of S.K.’s credibility. As for frequency, the district
court noted M.L.’s statement that the assaults occurred “a
few times a week.” Finally, because the offenses against the
two victims were alleged to have occurred in different
14 UNITED STATES V. HALAMEK
locations and involved different witnesses, the district court
determined that the testimony would not confuse the jury.
On this basis, the district court held that the evidence was
admissible as “relevant to [Halamek’s] motive, plan, intent,
and lack of mistake” with respect to his conduct underlying
the charged offenses.
Halamek’s opening brief argues that the district court’s
analysis was flawed because “any similarities” between
Halamek’s conduct with the two girls “were not particularly
probative in this case” because the jury “only had to find that
Halamek merely intended to engage in sexual activity with
[S.K.] at the time of transportation across state lines.”
(Internal quotation marks omitted.) Halamek does not
address the obvious point here, which is that the allegation
that he molested M.L. is clearly probative of his intent to
engage in sexual activity with S.K.
Halamek also contends that M.L.’s testimony was
cumulative of other evidence presented. However, none of
the other evidence had anything to do with Halamek’s
propensity to molest other children. Finally, Halamek states
that the district court failed to consider the extent to which
his molestation of M.L. had been proved or the extent to
which the evidence would distract the jury from the “central
issues of the trial.” LeMay, 260 F.3d at 1032 n.1 (internal
quotation marks omitted); To the contrary, the district court
took into account that N.R. could and would corroborate
M.L.’s account. Furthermore, Halamek’s intent to molest
S.K. was the central issue of the trial, and the district court
determined that the allegations relating to M.L. spoke to
Halamek’s intent. The district court did not abuse its
discretion by admitting M.L.’s and N.R.’s testimony.
UNITED STATES V. HALAMEK 15
C.
Halamek also argues that the district court erred by
(1) applying a two-level enhancement because S.K. was in
his custody, care, or supervisory control at the time of the
offense; (2) exceeding the statutory maximum on Count II;
and (3) adding two criminal history points for Halamek’s
Arizona conviction on the charge of custodial interference.
1.
The sentencing guidelines prescribe a two-level increase
in the offense level of transportation of a minor with intent
to engage in criminal sexual activity if “the minor was . . . in
the custody, care, or supervisory control of the defendant.”
U.S.S.G. § 2G1.3(b)(1)(B). “A defendant is in a custodial
position for purposes of this section when he ‘is a person the
victim trusts or to whom the victim is entrusted.’” United
States v. Castro-Romero, 964 F.2d 942, 944 (9th Cir. 1992)
(quoting U.S.S.G. § 2A3.1, Cmt.). However, the custodial
enhancement will not be appropriate “where the relationship
between the defendant and the minor arose almost entirely
from the crime itself.” United States v. Brooks, 610 F.3d
1186, 1201 (9th Cir. 2010). “[F]or the enhancement to
apply, the defendant must have held a position of parent-like
authority that existed apart from conduct giving rise to the
crime.” Id. “[A]ny relationship in which the defendant
actually plays a caretaking role may subject that defendant
to the enhancement.” United States v. Swank, 676 F.3d 919,
923 (2012); see also Harris, 2021 WL 2346061, at *4
(“[T]he cases where we have affirmed the enhancement
typically involve a minor who was left alone under the care
of the defendant.”).
Halamek did not object to the custodial enhancement, so
we review the district court’s application of the enhancement
16 UNITED STATES V. HALAMEK
for plain error. Vieke, 348 F.3d at 813. Imposing the
enhancement was not plainly erroneous because the
testimony established that Halamek played a caretaking role
in S.K.’s life. For example, Amanda testified that when they
had a birthday party planned for Halamek, Halamek initially
left Amanda at home and drove away with S.K., E.K., M.L.,
N.R., and L.H. No other adults appear to have been in the
vehicle. S.K. referred to Halamek as “Uncle Larry,” and
spent the night in the Halamek house almost every weekend.
Halamek took S.K. with him to run errands, and spent time
alone with her on numerous occasions. S.K. had also waited
inside Halamek’s truck for her school bus to come in the
morning on more than one occasion. Because the record
supported that Halamek played a supervisory and caretaking
role in S.K.’s life, the two-level enhancement under
U.S.S.G. § 2G1.3(b)(1)(B) was not plainly erroneous.
2.
Counts 1 and 2 were grouped for guidelines calculation
pursuant to U.S.S.G. § 3D1.2(b). The PSR concluded that
“[b]ased upon a total offense level of 41 and a criminal
history category of III, the guideline imprisonment range is
360 months to life. However, the statutory maximum for
Count 2 is 30 years.” Notwithstanding the statutory
maximum, the district court sentenced Halamek to
420 months’ imprisonment (35 years) on each count, to run
concurrently. The Government concedes that we should
remand for resentencing on Count 2. We therefore vacate
Halamek’s sentence on Count 2, and remand for
resentencing.
3.
The PSR assigned two criminal history points for
Halamek’s Arizona conviction on the charge of custodial
UNITED STATES V. HALAMEK 17
interference. The parties agree that this conviction should
not have added criminal history points because it arose from
the same conduct as the federal charges on which Halamek
was being sentenced. Correcting the criminal history points
calculation yields a criminal history score of II, rather than
III. U.S.S.G. § 5A. However, the guidelines for offense
level 41 are the same for individuals with criminal history
scores of II and III: 360 months–life.1 U.S.S.G. § 5A.
“If the court of appeals determines that . . . the sentence
was imposed in violation of law or imposed as a result of an
incorrect application of the sentencing guidelines, the court
shall remand the case for further sentencing proceedings[.]”
18 U.S.C. § 3742(f)(1). However, the court ordinarily
performs a harmless-error analysis if it finds that a particular
application of the guidelines was incorrect. “If the party
defending the sentence persuades the court of appeals that
the district court would have imposed the same sentence
absent the erroneous factor, then a remand is not required
under § 3742(f)(1). . .” Williams v. United States, 503 U.S.
193, 203 (1992). In a harmless-error analysis, the burden is
on the government to show that the error was not prejudicial.
United States v. Jordan, 291 F.3d 1091, 1095–96 (9th Cir.
2002). But in a plain-error analysis, which applies because
Halamek did not object to his criminal history score, “the
burden of persuasion is on the defendant to show that the
error was prejudicial.” Id. at 1096. And where “the evidence
1 Halamek contends that the criminal history points error was
prejudicial when combined with the district court’s alleged error in
imposing the two-level custodial enhancement. Without the
enhancement, the offense level would have been 39. An offense level of
39 yields a guidelines range of 292–365 for a criminal history score of
II, and 324–405 for a criminal history score of III. U.S.S.G. § 5A.
However, we have already rejected Halamek’s argument that the
custodial enhancement was improperly applied.
18 UNITED STATES V. HALAMEK
is insufficient to demonstrate” that a correct calculation
“would have generated a lower Guidelines range,” the
defendant generally has not shown that the error was
prejudicial. United States v. Depue, 912 F.3d 1227, 1235
(9th Cir. 2019); see also United States v. Lopez-Cavasos,
915 F.2d 474, 476 (9th Cir. 1990). As described above,
Halamek’s Guidelines range would have been the same had
the district court applied the correct criminal history score of
II. Therefore, we conclude that Halamek has not
demonstrated plain error as to his criminal history points
calculation

Outcome: Admission of Karen Blackwell’s expert testimony about
the “grooming” of victims of child sexual abuse was not
plainly erroneous because the testimony satisfied Rule 702.
The district court did not abuse its discretion by admitting
M.L.’s and N.R.’s testimony about Halamek’s prior acts of
child molestation pursuant to Rule 414. With respect to
sentencing, application of the two-level custodial
enhancement did not constitute plain error. However, the
Government concedes that the panel should remand for
resentencing at or below the statutory maximum for Count
2. For that reason, we AFFIRM the judgment of conviction,
AFFIRM the sentence on Count I, VACATE the sentence on
Count II, and REMAND for resentencing on Count II.

AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED

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