United States v. Gonzalez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-50461
Plaintiff-Appellee, D.C. No.
v.  CR-04-01189-
GABRIEL GONZALEZ, CAS-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 9, 2008—Pasadena, California
Filed July 18, 2008
Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Noonan
8927
8930 UNITED STATES v. GONZALEZ
COUNSEL
Eric S. Multaup, Mill Valley, California, for the defendant-
appellant.
Nathanial Pollack, Washington, D.C., for the plaintiff-
appellee.
OPINION
NOONAN, Circuit Judge:
Gabriel Gonzalez was convicted of acting under color of
law to deprive three women of their right to bodily integrity
in violation of 18 U.S.C. § 242. He appeals, alleging error in
the admission of evidence. Finding no fatally harmful error,
we affirm the judgment of conviction.
FACTS
We state the facts presented by the government’s witnesses:
According to Cecilia Tirado, the owner of a beauty shop,
she was driving home alone on the Imperial Highway after
having been dancing at Alpine Village. The date was a Sun-
day in July or August 2002. The time was early morning. She
UNITED STATES v. GONZALEZ 8931
was pulled over by someone in a patrol car dressed as a
policeman and carrying a gun.
The officer performed sobriety tests on her, then ordered
her into the patrol car. He drove her by her home in the City
of Southgate but passed the house without letting her out.
While driving, he asked her whether she had a husband or
boyfriend. After a long drive, the officer drove into a desolate
parking lot, commanded her to undress and penetrated her
vagina. He then drove her back to her car and left her.
According to Pamela Fields, a prostitute, she was walking
in the center of Long Beach Boulevard late at night on Janu-
ary 8, 2003 when a black and white police car, marked “Sher-
iff,” stopped her, and the officer asked her for identification,
then asked her to get into the car. He drove around and
stopped in a nearby alley, examined her genital area and dis-
played his own sexual organ. He requested her to engage in
oral sex, and she complied. He eventually let her go.
According to Kussy Guzman, a native of Peru, she was
driving home alone from her work as a shift leader at Jack-In-
The-Box at about 2:00 a.m. in the last days of 2002. She was
pulled over by a police officer, who questioned her and even-
tually told her to sit on the street. The officer asked her
whether she had a mother, a sister, or a boyfriend. Purportedly
in search of a weapon or drugs, he touched her hips, waist and
breasts. He then let her go.
According to Shirley Munoz, an assembler at a manufactur-
ing plant, she was driving alone to her hotel in the early morn-
ing hours of November 16, 2001. She was pulled over by a
sheriff’s deputy. She admitted to him that she was on parole.
He examined her, made her partially undress, and put his hand
on her breasts. The officer twice told her that she was pretty,
and asked if she was married before eventually releasing her.
According to Elizabeth Castillo-Chavez, a married resident
of Compton, she was pulled over by a Compton Sheriff’s dep-
8932 UNITED STATES v. GONZALEZ
uty on her way to work at about 5:00 a.m., near the end of
December 2001. The officer ordered her into the back of his
police car where he placed himself next to her and asked her
personal questions. He told her to get out of the car and
searched her, rubbing his palms on her thighs, hips and
breasts.
The principal issue at trial was the identity of the perpetra-
tor. The process of identification began when Fields, the night
she escaped from the officer, encountered her husband Rory
Fitzhugh, against whom she had a restraining order. A police
car noticed them, and she told the officers of her recent
ordeal. She furnished the number of the patrol car of the offi-
cer who had tormented her and also the license plate she had
memorized — respectively 050 or 650 and 300795 or 000795.
An investigator learned that 050 was on the roof of a sheriff’s
vehicle used by two deputies on the day shift on January 8
and not used that night. The number on the defendant’s patrol
car was 560. The license plate on his car was E1007975.
Despite these discrepancies, the investigation continued.
The investigator brought a “photo-six-pack” (a group of six
similar-looking persons) and showed it to Fields the day after
her ordeal. She identified the defendant as the perpetrator.
The investigator then had an examination made of the patrol
car used by the defendant on the night of January 8. A finger-
print matching Fields’ was found on the trunk of the car.
The investigation of the Fields case interacted with the
Tirado case, when in January 2003 Tirado responded to a tele-
phone survey by the Southgate police asking about citizen sat-
isfaction with police activities. She told her story, and a
Southgate police officer called on her at home to confirm it,
later notifying the Los Angeles Sheriff’s internal complaint
bureau. An investigator there spoke to the investigator of the
Fields case.
Tirado had identified the perpetrator as a Southgate police
officer. But on February 19, 2003, when Tirado was shown a
UNITED STATES v. GONZALEZ 8933
photo-six-pack she was visibly upset and at once identified
the defendant as the perpetrator. She also showed investiga-
tors where she’d been pulled over on the night of the attack;
it was an area patrolled by the Los Angeles Sheriff’s Depart-
ment.
The FBI, alerted by the investigators, searched the records
of the defendant’s onboard computer. The names of Guzman,
Munoz, and Chavez turned up. The FBI sent letters to each of
the three women asking if they had encountered “a police
officer” whose conduct had been improper. This inquiry led
each of the women to report the incidents set out above. Guz-
man then identified the defendant from an FBI photo-six-
pack.
PROCEEDINGS
Gonzalez was indicted on August 25, 2004. Count One of
the indictment alleged the rape of Tirado as above narrated.
Count Two alleged the fondling of Guzman. Count Three
alleged the oral sex required of Fields. In addition, the gov-
ernment offered the statements of Castillo and Munoz to show
a pattern of conduct by the defendant.
After a trial by jury Gonzalez was convicted on all three
counts. He was sentenced to thirty years’ imprisonment and
five years’ supervised release.
Gonzalez appeals.
ANALYSIS
Gonzalez’s appeal rests in challenges to the admissibility of
some of the evidence used against him. He earnestly contends
that there were individual mistakes by the court that justify
reversal and that cumulatively the errors require reversal. Our
review asks if the district court abused its discretion and if its
errors, if any, were more likely than not to affect the verdict.
8934 UNITED STATES v. GONZALEZ
United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir.
1991). We consider each contention of the defendant in turn.
[1] The framework for decision of the hearsay objections is
set by Fed. R. Evid. 801(d)(1)(B) and its exposition in Tome
v. United States, 513 U.S. 150 (1995). Rule 801 provides:
(d) Statements which are not hearsay. A statement
is not hearsay if —
(1) Prior statement by witness. The declarant
testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the state-
ment is . . . (B) consistent with the declarant’s testi-
mony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or
improper influence or motive.
As statements meeting these conditions are not hearsay, they
go beyond rebuttal of attack on the declarant and constitute
substantive evidence in the case. Tome, 513 U.S. at 157. The
statement may not be admitted “to counter all forms of
impeachment or to bolster the witness merely because she has
been discredited.” Id. The Rule “speaks of a party rebutting
an alleged motive, not bolstering the veracity of the story
told.” Id. at 158. This limitation reinforces the requirement
that the consistent statements “must have been made before
the alleged influence, or motive to fabricate, arose.” Id. “A
consistent statement that predates the motive is a square
rebuttal of the charge that the testimony was contrived as a
consequence of that motive.” Id.
The Retelling of Tirado’s Story. The defense argues that
Tirado’s testimony, delivered by her in Spanish through an
interpreter, was improperly and prejudicially bolstered by the
government calling as a witness Sergeant Enrique Garza, the
police officer who interviewed her and who at trial retold the
story of the assault as she had told it to him. This retelling in
UNITED STATES v. GONZALEZ 8935
English with the stamp of official acceptance of what Tirado
had already testified to must be considered, the defense main-
tains, a violation of Rule 801(d)(1).
[2] Measured by this measure, the retelling of Tirado’s
story by Garza was inadmissible hearsay. It was not offered
to rebut “an express or implied charge of . . . recent fabrica-
tion or improper influence or motive” on Tirado’s part. Refer-
ences by the defense in its cross-examination of Tirado to her
suit against Gonzalez and the County of Los Angeles were
made to bring out discrepancies in the dates to which she tes-
tified. True, a faint implication could have been drawn that
this lawsuit motivated her present testimony; but “[a] party
will often counter [hostile testimony] with at least an implicit
charge that the witness has been under some influence or
motive to fabricate.” Tome, 513 U.S. at 162 (Kennedy, J., for
plurality). Rule 801(d)(1)(B) should not be read to open “the
floodgates” to any prior consistent statement. Id. To conclude
that the cross-examination of Tirado opened the door to Ser-
geant Garza’s retelling of her story would remove the restraint
on prior consistent statements that Rule 801(d)(1)(B) imposes.
The district court erred in admitting it.
[3] Was admission of this hearsay prejudicial? Was it suffi-
ciently prejudicial that it more likely than not affected the ver-
dict? Tirado’s account of the rape not being at issue, it is
difficult to see what Garza’s retelling of it added to the prose-
cution’s case except for its spillover effect: Tirado was con-
firmed as credible by a police officer. A kind of vouching was
furnished for all her testimony, including the eventual identi-
fication. That effect of this inadmissible hearsay was prejudi-
cial to the defendant.
[4] The second question is harder. As the Supreme Court
has sententiously observed, persons are entitled to fair trials,
not perfect ones. Ross v. Oklahoma, 487 U.S. 81, 91 (1988).
A jury that believed that Tirado had had the awful experience
— and no one doubted that she had — would very probably
8936 UNITED STATES v. GONZALEZ
have believed that she could remember her assailant, even
without the hearsay from Garza. Tirado stated at the time of
her identification that she was “100 percent sure” that Gonza-
lez had raped her. Given this testimony, it is unlikely that any
generalized vouching regarding Tirado’s credibility altered
the jury’s verdict.
[5] The Retelling of Fields’ Story. Clarissa McClung, a reg-
istered nurse and sexual examiner, examined Fields at the
hospital the night of the assault. McClung testified that the
victim’s description of the assault affects the examination she
conducts. She examined Fields’ mouth for injury. Fields told
her that “she had been forced to have oral copulation.” This
hearsay, objected to by the defense, was properly admitted
under Fed. R. Evid. 803(4) as a statement “made for purposes
of medical diagnosis or treatment.” True, she was collecting
evidence, but that forensic function did not obliterate her role
as a nurse, in a hospital, performing a medical examination of
a victim of a sexual assault. It would have been unprofes-
sional for McClung to have treated Fields without eliciting an
account of what had happened to her. We conclude that the
district court did not abuse its discretion in admitting
McClung’s statement under Rule 803(4).
The defense also objected to a retelling of Fields’ story by
Sergeant James Kagy, the police officer who interrogated her
approximately three hours after the event. Again, the objec-
tion is to what is characterized as hearsay, but it appears to us
to have been proper rebuttal.
The defense had cross-examined Fields as follows:
Mr. Hirsch: Ms. Fields, you have before you the
exhibit?
Ms. Fields: Yes, sir, I do.
UNITED STATES v. GONZALEZ 8937
Mr. Hirsch: And is this the complaint that you have
for damages against the County of Los Angeles and
the defendant in this case?
Ms. Fields: I actually haven’t even read it yet . . . .
***
Mr. Hirsch: You have an attorney, Mr. Gregory
Yates, who filed a lawsuit on your behalf?
Ms. Fields: Yes, I do, sir.
Mr. Hirsch: And you understand that lawsuit is
pending in the federal district court somewhere in
this building?
Ms. Fields: I’m not sure.
Mr. Hirsch: And you understand the lawsuit is
against the County of Los Angeles, Leroy Baca and
Gabriel Gonzalez; isn’t that right?
Ms. Fields: I’m not aware of everything fully, but I
know there’s a lawsuit.
Mr. Hirsch: And you are seeking damages as a result
of this lawsuit, are you not?
Ms. Fields: Yes, sir.
***
Mr. Hirsch: And after the indictment was returned,
then your attorney filed the lawsuit; is that correct?
Ms. Fields: No. During that time, Ronald Mintz
picked up the case for me and had done some filings
for me here in L.A.
8938 UNITED STATES v. GONZALEZ
Mr. Hirsch: Well, but did you tell Agent Riedel that
you contacted an attorney, and since you didn’t
know the name of the deputy, the attorney would not
take the case?
Ms. Fields: That’s right.
Mr. Hirsch: And after the story was publicized, and
the deputy had been indicted, then your attorney
filed the paperwork?
Ms. Fields: Yes. But during that time frame, there
was another attorney that helped me. His name was
Ronald Mintz.
[6] The thrust of this cross-examination suggested that
Fields had a money motive to lie about Gonzalez’s conduct.
Unlike the cross-examination of Tirado, the references to the
pending civil case were not incidental. They were made to
suggest a mercenary purpose. The officer’s account of her
story was properly admissible rebuttal under Rule
801(d)(1)(B).
The defense claims that Fields already had a motive to lie
to the officer in the hospital — to avoid arrest for prostitution
and to keep her husband out of trouble for violating a restrain-
ing order prohibiting him from being with her. The defense
argues that the court erroneously prevented it from presenting
the restraining order to explain Fields’ concern. It adds that
her young children were stowed at a motel; if Fitzhugh were
arrested for violating the order and if she were arrested for
prostitution, the children would have been abandoned; hence,
she quickly made up the story about Gonzalez to distract
attention from herself and her husband. The defense notes that
her testimony that she “flagged down” the officers who
helped her is contradicted by their testimony that they took
the initiative in making contact with her.
UNITED STATES v. GONZALEZ 8939
[7] The existence of the motives attributed to Fields does
not disqualify her statement to Kagy as appropriate rebuttal of
the implicit charge of fabricating her story in order to pursue
the civil suit. If the defense had been allowed to develop the
facts on the restraining order, it might have appeared that
Fields conceivably had a motive to distract police attention
from Fitzhugh. But that motive was slight compared to her
own motive to keep from arrest as a prostitute, and this
motive was already presented to the jury when her occupation
became clear to them on direct examination. The jury knew
she had a motive to lie and that her claim to have asked the
officers for help was contradicted by them. The additional
information about Fitzhugh would have added little to the
jury’s assessment of her credibility. The court’s limitation on
cross-examination of Fields on the terms of the restraining
order sensibly saved time and confusion and did not violate
Gonzalez’s right to confront the witnesses against him. See
United States v. Munoz, 233 F.3d 1117, 1134 (9th Cir. 2000);
see also Fed. R. Evid. 403.
[8] The uncharged conduct. The acts involving Castillo and
Munoz were testified to, over objection, as admissible under
Fed. R. Evid. 404(b). The court found that there was sufficient
evidence for the jury to find that Gonzalez had committed the
acts; that the acts were not too remote in time from the crimes
charged; that there were sufficient similarities between the
acts and the crimes charged; that the probative value of the
evidence outweighed the danger of unfair prejudice; and that
evidence of the acts was extremely probative of identity and
modus operandi.
The defense points to differences. Gonzalez ran a computer
check on Castillo and Munoz, not on Fields or Tirado. The
computer check on Guzman was a month after the date she
said the incident occurred. The acts committed on Castillo and
Munoz were different from those committed on Fields, Guz-
man and Tirado. Fields was not in a car but on foot. There
was no “signature” by the defendant.
8940 UNITED STATES v. GONZALEZ
[9] Rule 404(b) prohibits the use of other crimes or wrongs
to prove character or criminal propensity. To draw the line
between acts constituting such excluded evidence and acts
showing identity and modus operandi is not easy but not
impossible. Here modus operandi consisted in (1) being a
police officer armed with a badge and a gun and the invisible
aura of authority accompanying these trappings of public
trust; who (2) would spot a woman alone at night; (3) would
accost her; (4) would identify her as neither a minor nor a sex-
agenarian; (5) would attempt to establish a conversational rap-
port by asking her about her family and personal
relationships; (6) would command her to sit, squat, stand, or
undress; (7) would obtain sexual stimulation by contact with
her flesh while she was in an isolated position unable to resist
his commands or his hands; and (8) would release her without
any arrest or citation for her supposed offense. Beyond pro-
pensity, the evidence established a way of behavior that could
be reasonably relied upon by a juror to convict Gonzalez of
the charged offenses.
Conclusion. It is not contested that the testimony of the
government’s witnesses, if true, established offenses by Gon-
zalez in violation of 18 U.S.C. § 242. Included in the liberty
protected by the Fourteenth Amendment is the concept of per-
sonal bodily integrity and specifically “the right to be free
from certain sexually motivated physical assaults and coerced
sexual battery.” United States v. Lanier, 520 U.S. 259, 262
(1997). The defendant has been shown to have, wilfully and
under color of state law, unlawfully coerced his victims to
suffer sexually-motivated assaults and batteries. We have
taken note of the minor discrepancies emphasized by the
defense in the witnesses’ accounts. None of them are such as
to shake confidence in the verdict. Their testimony was
detailed, their accounts of what had been done to them effec-
tively unchallenged, and their identification of Gonzalez as
the perpetrator was confirmed by Fields’ fingerprint on his
patrol car; by Fields’ accurate recollection of 8 of the 10 iden-
tifying numbers on Gonzalez’s patrol car; by the proof of the
UNITED STATES v. GONZALEZ 8941
area he patrolled and the times he was on patrol; and by the
experiences of Castillo and Munoz.
Gonzalez, thirty-seven at the time of the crimes, was a
graduate of California State University at Long Beach. He had
been gainfully employed since he was 26. He had no criminal
record. He had been a member of the Los Angeles Sheriff’s
Department since 1997. To read his case is to read the story
of a police officer inexplicably gone bad. His fall is great, his
sentence hard. Bearing all this in mind and recalling that iden-
tifications are sometimes mistaken, we have reviewed the
record and found that we cannot say that our confidence in the
verdict has been shaken or that the convictions were produced
by error. Accordingly, the judgment of conviction is
AFFIRMED.