United States v. Cruz-Benavente ( 2023 )

Case: 22-50078 Document: 00516827566 Page: 1 Date Filed: 07/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 20, 2023
No. 22-50078 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Damion Edward Cruz-Benavente,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-157-1
______________________________
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam: *
Defendant-Appellant Damion Edward Cruz-Benavente (“Cruz”)
was sentenced to life imprisonment for sexually abusing a minor (“D.A.”).
Cruz appeals his convictions under Counts One and Two, “aggravated
sexual abuse by force” and “sexual abuse by threat.” 18 U.S.C. §§ 2241(a),
2242(1) (emphasis added). He challenges several evidentiary decisions at
trial: (1) the admission of various out-of-court statements by D.A., (2) the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50078 Document: 00516827566 Page: 2 Date Filed: 07/20/2023
No. 22-50078
admission of statements made by a detective who interviewed D.A., and (3)
the limitation of Cruz’s ability to cross-examine D.A. with myriad Facebook
posts. Cruz also invokes cumulative error. We affirm his conviction.
FACTS AND PROCEEDINGS
Cruz lived with D.A. while dating her mother. Cruz’s sexual abuse of
D.A. is well-documented, but Cruz denies using force or threat. The relevant
facts are presented alongside testimony at trial, the intricacies of which are
the subject of this appeal.
The Government presented D.A. as a key witness, who testified that
she was sexually abused by Cruz for years. Cruz first molested her when she
was 11 years old. He would go on to have sex with D.A. countless times; on
occasion, while she was gagged. D.A. testified that she did not tell anyone
about Cruz’s abuse because she feared him. Cruz told her that, if she
disobeyed him, he would hurt her sister, her friends, and even himself. D.A.
testified that Cruz sometimes acted violently, once swinging a machete near
her for no apparent reason and, another time, smashing her belongings out of
jealousy. Cruz stopped abusing D.A. after he found out she was pregnant. At
the age of 14, D.A. gave birth to her son, and she long hid the fact that Cruz
was the father.
On cross-examination, D.A. admitted that she misled investigators
about who had impregnated her. In May 2019, Child Protective Services
(CPS) began investigating D.A.’s mother because some of her children were
exposed to methamphetamine. When CPS investigators asked D.A. if there
was sexual abuse in the home, D.A. denied any abuse. When CPS later
discovered that D.A. was a mother, a court hearing was held to determine
paternity. Before the hearing, D.A. began to worry that Cruz might have
custodial rights to her son, so she finally decided to report his abuse to the
police.
2
Case: 22-50078 Document: 00516827566 Page: 3 Date Filed: 07/20/2023
No. 22-50078
Cruz’s counsel also attempted to convey that D.A. did not fear or feel
threatened by Cruz. For example, the defense presented evidence of D.A.’s
good grades and good conduct at school. D.A. affirmed that she and Cruz had
outings together; that she rode a roller coaster with Cruz; and that she posted
on Facebook, “I love my life and all who are apart [sic] of it!!” which was
followed by “#Nevergivingitup #igotitall Share if you love your life.” Cruz
also established that D.A.’s grandmother observed no threats and saw
nothing that suggested D.A. was upset. D.A.’s friend noted that D.A. did not
confide to her that Cruz was hurting her, that D.A. appeared happy, and that
D.A. lied about her son’s paternity. D.A. testified that Cruz had not been
violent or threatening before he sexually assaulted her in Florida, and that she
did not tell her family, teachers, school nurses, friends, or police that Cruz
abused or threatened her.
In response, the Government offered three witnesses to rehabilitate
D.A.’s credibility: Detective Tanya Lawson, Family Advocate Lori Nipper,
and Investigator Phillip Oaks. D.A. had previously spoken to each of them
during interviews.
Lawson, a detective with the Killeen Police Department, interviewed
D.A. in November 2020. At trial, Lawson testified that D.A. recounted a
sexual assault by Cruz in Florida as they packed to leave for Big Bend
National Park, and then again in their kitchen at Big Bend. D.A. told Lawson
that, from then on, Cruz sexually abused her almost daily, and that Cruz was
forceful and made threats. She said that she was afraid of his perceived
mental issues and knives. Cruz objected to Lawson’s testimony as hearsay,
which the court overruled. The Government’s position was that the
statement was admissible as consistent with D.A.’s cross-examined
testimony. Then, the court expressly granted Cruz’s request for a “running
objection” on hearsay “so [the court and the parties] don’t have . . .
interruptions” to each question.
3
Case: 22-50078 Document: 00516827566 Page: 4 Date Filed: 07/20/2023
No. 22-50078
The Government’s next rehabilitative witness, Nipper, interviewed
D.A. after the 2019 CPS investigation turned up allegations of sexual abuse.
Nipper testified that D.A. detailed her rape by Cruz in Florida and in the
kitchen in Big Bend. Nipper’s testimony was short on detail, saying only that
“there were multiple times where [D.A.] said that [Cruz] forcefully turned
her or forcefully inserted his penis into her vagina . . . [and] that he would
threaten either to harm himself, her, her family, her friends.” Cruz voiced no
further objection during Nipper’s testimony.
The Government’s last rehabilitative witness was Oaks, who had
interviewed Cruz twice 1 and D.A. once. Much of D.A.’s recorded interview
was played for the jury. D.A.’s statements largely mirrored her trial
testimony, but the recording included some additional events such as an
attempted anal penetration by Cruz. Throughout the interview, Oaks made
encouraging statements to D.A. such as, “You’re doing a fantastic job . . .
you are going down a straight path and everything is lining up.” He also
stated that Cruz was inconsistent while D.A. was consistent.
Cruz first raised several objections to Oaks’ interview of D.A.,
including that defense counsel received late notice of the Government’s
intention to offer the recording at trial. The parties had a lengthy discussion
with the court, which ultimately led to a recess for two hours to permit Cruz
to review the recording. Following that review, Cruz made additional
objections: He objected to the first one-minute and forty-seconds of the
recording as hearsay—a speech that included Oaks’ opinions, which the
_____________________
1
The Government played both recorded interrogations of Cruz for the jury. In the
first recording from December 2020, Cruz called himself a “monster” but claimed that he
had only had sex with D.A. once, when he woke up with her on top of him. The second
recording was from after DNA results revealed that Cruz was the father of D.A.’s son. Cruz
recounted having sex with D.A. as many as 30 times. Cruz denied telling D.A. not to tell
anyone.
4
Case: 22-50078 Document: 00516827566 Page: 5 Date Filed: 07/20/2023
No. 22-50078
court agreed to redact. Cruz also referred to his earlier “running objection”
to hearsay. Cruz further objected to Oaks’s statements as improperly
bolstering D.A. and providing improper opinions about her strength,
courage, and credibility. The district court denied that objection, because
Oaks’s statements served as context for the jury that would help them assess
credibility. All other objections were ultimately overruled.
At the close of the trial, the jury convicted Cruz on all counts. He was
sentenced to life imprisonment for Counts One and Two and to 180 months
of imprisonment for Count Three, to run concurrently. Cruz timely
appealed. FED. R. APP. P. 4(b)(1)(A).
STANDARD OF REVIEW
We review the district court’s admission of D.A.’s out-of-court
statements for plain error. To prevail, Cruz must show an error that had not
been intentionally relinquished or abandoned, that was clear or obvious, and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). We may correct the error only if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id.As to Investigator Oaks’s statements during the recorded interview,
we review the district court’s decision on hearsay for abuse of discretion.
United States v. Polidore, 690 F.3d 705, 719 (5th Cir. 2012). We apply the same
standard for the admission of lay opinion testimony. United States v. Yanez
Sosa, 513 F.3d 194, 199-200 (5th Cir. 2008). Review of evidentiary rulings in
criminal trials is heightened and subject to harmless error review. United
States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008).
Finally, we review de novo the district court’s limitation on cross-
examination as a possible Sixth Amendment violation. United States v.
Templeton, 624 F.3d 215, 223 (5th Cir. 2010). If there is no violation, we
5
Case: 22-50078 Document: 00516827566 Page: 6 Date Filed: 07/20/2023
No. 22-50078
review the limitation of cross-examination for abuse of discretion, subject to
a harmless error analysis. Id.DISCUSSION
1. D.A.’s out-of-court statements
Cruz challenges the admission of prior statements by D.A. from three
sources: a recording of her interview with Investigator Oaks; testimony from
Detective Lawson about her interview with D.A.; and testimony from Family
Advocate Nipper about her interview with D.A. The government offered all
three statements as prior consistent statements to rehabilitate D.A. following
Cruz’s cross-examination attack of her credibility.
The problem here is that all of D.A.’s challenged statements were
made after 2019, when it was established that D.A. had motive to fabricate
testimony to maintain custody of her child. Federal Rule of Evidence
801(d)(1)(B) “permits the introduction of a declarant’s consistent out-of-
court statements to rebut a charge of recent fabrication or improper influence
or motive only when those statements were made before the charged recent
fabrication or improper influence or motive.” Tome v. United States, 513 U.S.
150, 167 (1995) (emphasis added). The statements offered to rehabilitate
D.A. were made after her alleged motive to fabricate arose. The parties agree
on appeal that they were improperly presented.
As a preliminary matter, the Government contends that Cruz
affirmatively waived this argument, rendering it unreviewable by this court,
when Cruz elicited D.A.’s “motivation to fabricate” but failed to
appropriately object to the admission of the recorded statements under Rule
801(d)(1)(B)(i). We are unpersuaded.
Waiver requires “an affirmative choice by the defendant to forego any
remedy available to him, presumably for real or perceived benefits resulting
6
Case: 22-50078 Document: 00516827566 Page: 7 Date Filed: 07/20/2023
No. 22-50078
from the waiver.” United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir.
2010) (quoting United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002)),
overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169(5th Cir. 2018). The record does not indicate any knowing choice by Cruz to
relinquish this objection. As Cruz correctly notes, Rule 801(d)(1)(B)’s text
does not expressly mention the temporal requirement; that requirement
instead arises from case law. United States v. Williams, 264 F.3d 561, 575 (5th
Cir. 2001). Further, there was no mention of Tome’s temporal requirement in
the parties’ extensive discussion with the trial judge regarding the
admissibility of the recording. Based on the conduct of the parties and court,
it is evident that no affirmative waiver occurred. Cruz’s failure to object
based on the timing of the recorded statements did not constitute an
“intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)).
Now on to the merits: The Government concedes that it introduced—
through Nipper, Lawson, and Oaks—statements from D.A. made after 2019
when her motive to fabricate arose. Those statements were not admissible as
prior consistent statements for purposes of rehabilitation. Tome, 513 U.S. at
160. The parties agree this was error.
However, that leaves open the question of whether these challenged
statements affected Cruz’s substantial rights. See Puckett, 556 U.S. at 135. To
succeed, Cruz “must demonstrate that there is a reasonable probability that
[his] trial would have come out differently but for” the admission of that
evidence. United States v. Lara, 23 F.4th 459, 477 (5th Cir.), cert. denied, 142
S. Ct. 2790 (2022) (internal quotation marks and citation omitted). Any
“error in admitting evidence will be found harmless when the evidence is
cumulative, meaning that substantial evidence supports the same facts and
7
Case: 22-50078 Document: 00516827566 Page: 8 Date Filed: 07/20/2023
No. 22-50078
inferences of those in the erroneously admitted evidence.” United States v.
El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).
We hold that there was no harm here because the statements in
question were cumulative—they mirrored D.A.’s detailed in-court
testimony under oath. Ample additional evidence corroborated D.A.’s
account, including testimony from D.A.’s grandmother and a family friend
describing Cruz’s behavior toward D.A. That evidence, independent of the
erroneously admitted testimony, supports the jury’s decision in this case. We
find no reason to reverse.
2. Oaks’s out-of-court statements
Cruz next challenges the admission of Investigator Oaks’s
encouraging statements to D.A. in the interview recording as improper
opinion testimony and hearsay. Cruz sufficiently raised this issue at trial. He
referred to his “running objection” to hearsay, which was acknowledged by
the court, immediately before arguing that Oaks’s statements in the
recording were inadmissible.
A declarant’s out-of-court statement is not hearsay if it is not offered
to prove the truth of the matter asserted. United States v. Watkins, 591 F.3d
780, 786 (5th Cir. 2009); see also Fed. R. Evid. 801(c)(2) (defining as an
element of hearsay that the statement must be offered “to prove the truth of
the matter asserted”).
We agree with the Government that Oaks’s statements to D.A. were
not offered to prove their underlying truth. Although Investigator Oaks said,
for example, that D.A.’s story was consistent and that she had courage, those
statements were not offered to demonstrate that either of those notions were
true. Statements made on investigative recordings by agents or informants as
“part of a ‘reciprocal and integrated’ conversation” are non-hearsay
statements that are properly admitted to provide context to admissible
8
Case: 22-50078 Document: 00516827566 Page: 9 Date Filed: 07/20/2023
No. 22-50078
statements. United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995)
(quoting United States v. Murray, 618 F.2d 892, 900 (2d Cir. 1980)). The
district court determined that Oaks made the disputed statements to D.A. to
build rapport and encourage her to talk. The context of Oaks’s words of
encouragement allowed the jury to better evaluate D.A.’s credibility—
providing context for determining whether they made her more forthcoming
or, perhaps, even made her less credible. That was for the jury to decide.
Although the court could have redacted those statements, similar redactions
were not made to Oaks’s contextual statements in Cruz’s interviews, and the
statements do provide probative value as to credibility.
As for Cruz’s objection that Oaks’s statements expressed opinions,
Federal Rule of Evidence 701 permits testimony in the form of opinion if it is
(1) rationally based on the perception of the witness, (2) helpful to a clear
understanding of the witness’ testimony or determination of a fact in issue,
and (3) not based on scientific, technical or other specialized expertise. See
Yanez Sosa, 513 F.3d at 200. Again, however, the Government did not
present Oaks’s opinions for their truth or substance. Cruz’s position here
faces the same pitfall as our hearsay analysis above.
Deeming these statements to be important context, the district court
appropriately observed that “the jury is going to see that for what it is and
they’re smart enough to do that.” Oaks’s statements were relevant to
evaluating D.A.’s credibility, and the district court was within its discretion
to make these wise determinations.
3. Limitation of Cross-Examination
Cruz contends that his right to confront D.A. was violated when the
district court limited his use of Facebook posts on cross-examination. Cruz
was prevented from presenting three short videos that D.A. took at an
amusement park, and an exhibit of around 100 pages of postings from D.A.’s
9
Case: 22-50078 Document: 00516827566 Page: 10 Date Filed: 07/20/2023
No. 22-50078
Facebook, spanning 2005 to 2021. When the Government objected to the
admission of those exhibits, Cruz explained that he meant to contradict
D.A.’s testimony that she feared him—her social media indicated that he was
a happy part of her life. The district court permitted Cruz to present only one
of D.A.’s post from July 9, 2016: “I love my life and all who are apart [sic] of
it!!” which was followed by “#Nevergivingitup #igotitall Share if you love
your life.”
The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; see Crawford v.
Washington, 541 U.S. 36, 42 (2004). “The main and essential purpose of
confrontation is to secure for the opponent the opportunity of cross-
examination.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974). “The district
court has ‘wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally
relevant.’” United States v. Skelton, 514 F.3d 433, 439 (5th Cir. 2009)
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986))
The district court’s limitation of cross-examination did not violate the
Confrontation Clause or exceed the court’s discretion. The proposed exhibit
of Facebook posts was voluminous and unfocused, consisting of
approximately 100 pages of photos, text posts, messages, and memes from
2005 to 2021, and conveying a wide range of possible emotions. The one post
that the district court permitted conveyed happiness and optimism in line
with Cruz’s stated purpose for presenting the proposed exhibit. The district
court fairly decided that the full gamut of posts would lead to confusion and
provide little further probative value. FED. R. EVID. 403; Skelton, 514 F.3d
at 442 (holding that a court may limit evidence whose probative value is
10
Case: 22-50078 Document: 00516827566 Page: 11 Date Filed: 07/20/2023
No. 22-50078
substantially outweighed by any prejudicial effect or based on confusion of
the issues or repetitive or marginally relevant interrogation). Cruz was
otherwise permitted, as was his right, to thoroughly cross-examine D.A. and
to offer other evidence of her demeanor with ample independent evidence
purporting to contradict D.A.: She made good grades, made no reports to
friends, teachers, counselors, or close family, and otherwise did not exhibit
fear or anxiety.
The proposed exhibit of videos and social media posts, if presented
without limitation, would not have left the jury with a significantly different
impression of the witness’s credibility. See Templeton, 624 F.3d at 223. The
district court’s decision to limit cross-examination did not violate Cruz’s
confrontation rights nor did the court abuse its discretion.
4. Cumulative Error
Finally, Cruz contends that cumulative error requires the reversal of
his convictions on Counts One and Two. “The cumulative error doctrine
provides that an aggregation of non-reversible errors (i.e., plain errors failing
to necessitate reversal and harmless errors) can yield a denial of the
constitutional right to a fair trial, which calls for reversal.” United States v.
Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc) (cleaned up).
Cruz restates the errors he challenged in this appeal along with the
district court’s allowance of the following statements: (1) testimony by
D.A.’s grandmother, R.O., that she too had been abused and understood why
D.A. kept it a secret, and (2) testimony by Detective Lawson that sexual
abuse disclosures have no pattern and that “a lot of the time” the allegations
occur years after the alleged abuse.
To find cumulative error, there must be errors to aggregate. United
States v. Herman, 997 F.3d 251, 275 (5th Cir. 2021); United States v. Nicholson,
961 F.3d 328, 339-40 (5th Cir. 2020). Even with multiple errors, “the
11
Case: 22-50078 Document: 00516827566 Page: 12 Date Filed: 07/20/2023
No. 22-50078
doctrine necessitates reversal only in rare instances.” Delgado, 672 F.3d at
344. Cruz’s most compelling argument for error is the admission of D.A.’s
statements for rehabilitation. However, considering Cruz’s admissions of
having sexual contact with D.A. and other evidence presented at trial, we
decline to exercise the extraordinary doctrine of cumulative error here.
Conclusion
The district court’s judgment and Cruz’s convictions are
AFFIRMED.
12