United States v. Christopher Preston ( 2017 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         No. 15-10521
    Plaintiff-Appellee,
    D.C. No.
    v.                           4:13-cr-01851-
    JAS-BPV-1
    CHRISTOPHER JAMES PRESTON,
    Defendant-Appellant.                    OPINION
    Appeal from the United States District Court
    for the District of Arizona
    James Alan Soto, District Judge, Presiding
    Argued and Submitted June 8, 2017
    Pasadena, California
    Filed October 17, 2017
    Before: Stephen Reinhardt and Alex Kozinski, Circuit
    Judges, and Terrence Berg, * District Judge.
    Opinion by Judge Berg;
    Concurrence by Judge Kozinski
    *
    The Honorable Terrence Berg, United States District Judge for the
    Eastern District of Michigan, sitting by designation.
    2                 UNITED STATES V. PRESTON
    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.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    UNITED STATES V. PRESTON                  3
    COUNSEL
    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.
    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.
    4               UNITED STATES V. PRESTON
    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
    UNITED STATES V. PRESTON                  5
    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
    6               UNITED STATES V. PRESTON
    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).
    UNITED STATES V. PRESTON                     7
    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).
    8                UNITED STATES V. PRESTON
    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 . . . . ”
    UNITED STATES V. PRESTON                     9
    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:
    10              UNITED STATES V. PRESTON
    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 lying to
    you about the sexual abuse?
    A: The alcohol and drug use.
    Q: Not the sexual abuse?
    A: Not the sexual abuse.”
    Defense counsel objected to the government’s initial
    question on the bases of foundation and speculation, but the
    district court overruled the objection.
    Second, on cross-examination, defense counsel and
    Bussart had the following exchange:
    “Q: [A]s far as the suspicion of lies, you just
    say, “I suspected lies, dishonest behavior at
    the time,” but you don’t specifically refer-
    ence or say about drug use?
    A: I only talked to her about his alcohol and
    drug use, nothing else [. . .]
    Q: And you can’t say for sure what else he
    has possibly lied to you about?
    A: I can say he wasn’t lying about his sexual
    abuse. It is my opinion, my professional
    opinion.
    UNITED STATES V. PRESTON                     11
    Third, as its final question on redirect, the government
    asked Bussart, “[i]s it your opinion that Tim Rosenberg was
    truthful to you about the sexual abuse?” She replied, “[i]t is,
    yes.”
    Shortly after this question was asked, defense counsel
    objected and the district court overruled the objection,
    stating that it was “tardy” and that the question was
    “appropriate . . . in view of the questions that were asked in
    cross.” The next day, however, the district court issued a
    curative instruction to the jury regarding Bussart’s
    testimony. The court stated, “You are the exclusive judges
    of who to believe . . . so to the extent that Ms. Bussart offered
    any opinion or belief about the truthfulness of another
    witness, you must disregard that and decide for yourselves
    . . . .” In its final charge to the jury, the court repeated this
    instruction.
    The government does not contest that it was improper for
    Bussart to indicate that she believed Rosenberg was telling
    the truth about the sexual abuse allegations. Rather, the
    government argues that we should not review this issue
    because, in moving to admit Bussart’s email, the defense
    invited any error that occurred. The government points out
    that the district court’s order admitting the email “expressly
    allowed the [prosecutor] to clarify the extent of [Bussart’s]
    opinion.”
    The defense did not invite this error. The district court
    allowed the defense to question Bussart about her opinion in
    the email regarding Rosenberg’s truthfulness about drug and
    alcohol use and granted the government permission to
    “cross-examine [her] . . . as to whether her opinion is limited
    to lies about drug use or is made more broadly.” This ruling
    did not authorize the government to elicit Bussart’s
    opinion—which the prosecutor did on both direct and
    12                 UNITED STATES V. PRESTON
    redirect—as to whether Rosenberg was telling the truth
    about the ultimate issue: whether Preston sexually abused
    him. 1    Although some of defense counsel’s cross-
    examination may have expanded the area of inquiry (for
    example, “you can’t say for sure what else he has possibly
    lied to you about?”), this line of questioning was a response
    to the government’s elicitation of Bussart’s statement that
    she believed Rosenberg’s allegations. Defense counsel did
    not invite Bussart’s three clearly improper statements
    regarding her belief in the veracity of Rosenberg’s
    allegations, and the district court abused its discretion by
    allowing them.
    In addition to improper opinion testimony indicating that
    she believed Rosenberg individually, Bussart gave improper
    opinion testimony as a lay witness about whether sex abuse
    victims generally tell the truth. The government never
    noticed Bussart as an expert, and the district court denied the
    government’s request, the day before trial, to offer expert
    testimony concerning a worksheet entitled “Adult Grooming
    Behaviors for Sexual Abuse of Children.” The court
    instructed the government that Bussart was allowed to testify
    about her treatment of Rosenberg specifically and about
    grooming, but only to the extent that the topic came up
    during treatment. The court did not allow her to offer an
    opinion as an expert on any topic.
    1
    Based on the district court’s preliminary ruling, a proper question
    for the prosecutor to ask Bussart would have been: “Is your opinion about
    Rosenberg’s lack of truthfulness limited to his statements to you
    concerning his use of drugs and alcohol, or are you saying he was
    generally untruthful?”
    UNITED STATES V. PRESTON                    13
    At trial, Bussart offered two opinions regarding sexual
    abuse generally, and the district court erred in allowing her
    to do so.
    First, although defense counsel failed to object, the
    district court plainly erred in allowing Bussart to answer the
    following juror question: “To the best of your knowledge,
    have you treated males for sexual abuse only to find the
    abuse to be false?” Bussart replied, “I have not experienced
    that even when I have done—treated men and women or
    girls or boys, yes, that the allegation has normally been true.”
    The court should have stricken this testimony. Testifying as
    a lay witness, Bussart did not offer any factual basis in
    support of the assertion that all the allegations made by
    people she treated had “normally been true.”
    Second, the district court abused its discretion by
    permitting the following juror question over defense
    counsel’s objection, which was posed by a juror to Bussart:
    “Based off of your sessions with Tim and his emotions, did
    his emotions demonstrate similarity to those of a person that
    had been a victim of sexual abuse?” Bussart replied, “Yes.
    Very much so.” The court had not qualified Bussart to offer
    expert opinion concerning how sex abuse victims generally
    demonstrate their emotions. To permit this question and
    response was an abuse of discretion, running afoul of the
    court’s instruction that Bussart could only testify about her
    personal experience in treating Rosenberg.
    In sum, the district court abused its discretion in
    (1) allowing the government’s line of questioning that led to
    Bussart’s three improper statements indicating that she
    believed Rosenberg’s allegations, and (2) permitting a
    juror’s question to be asked regarding whether Rosenberg
    demonstrated his emotions in a manner consistent with sex
    abuse victims generally. In addition, it was plainly
    14              UNITED STATES V. PRESTON
    erroneous for the district court to allow Bussart to state that
    allegations of sexual abuse in her patients had normally been
    true. We do not decide the prejudicial effect of these errors
    independently. Instead, we reserve our analysis of the
    prejudicial effect of Bussart’s testimony until the end of the
    opinion, where we discuss the cumulative effect of all the
    errors at trial. See infra Part III.D.
    3. Barry Rosenberg’s Testimony
    The next improper opinion testimony we consider is that
    offered by Barry Rosenberg, Tim Rosenberg’s brother.
    In the summer of 1998, Barry, then fourteen years old,
    also frequently spent time at Preston’s home. At trial he
    testified about his experiences there. Preston contends that
    the following testimony—elicited in response to a juror
    question—impermissibly allowed Barry to offer his opinion
    that he found his brother’s allegations of sexual abuse to be
    believable:
    Q: “What was your response when you
    learned about the allegations of sexual abuse
    by the defendant?”
    A: “[T]here wasn’t any questioning my
    brother about what he was saying. There was
    just understanding. I can understand. I can
    see. Things make sense to me.”
    The defense did not object to this question or to Barry’s
    answer, and the issue was therefore not preserved for appeal.
    Consequently, we review for plain error. The government
    argues that the statement “there wasn’t any questioning my
    brother about what he was saying” was ambiguous. While
    that statement may be interpreted in different ways, one
    UNITED STATES V. PRESTON                   15
    reasonable way of interpreting it is that Barry found “what
    [his brother] was saying” to be beyond question. In any
    event, Barry’s four subsequent statements—“There was just
    understanding. I can understand. I can see. Things make
    sense to me”—were more definitive. In this context, the
    “things” that Barry understood, saw, and made sense to him,
    were his brother’s allegations that Preston sexually abused
    him. Because a reasonable juror would have understood this
    testimony as Barry professing his belief in the veracity of his
    brother’s allegations, permitting this testimony was plain
    error. Barry Rosenberg’s statements will factor into our
    cumulative error analysis.
    4. Agent Dellacroce’s Testimony
    In the course of his investigation, Special Agent
    Dellacroce interviewed Preston and gave him a polygraph
    exam. In a pretrial ruling, the district court held that
    Dellacroce could not mention the polygraph or its results but
    could testify about the questions he asked Preston during the
    exam, as well as Preston’s answers. During direct
    examination, the government and Dellacroce had the
    following exchange:
    Q: [. . .] Did you ask the defendant did you
    put your penis in [Rosenberg’s] mouth at
    your house?
    A: Yes.
    Q: And what was the defendant’s response to
    [the] question[]?
    A: No.
    16                UNITED STATES V. PRESTON
    Q: Did you indicate to the defendant that you
    did not believe him?
    A. Yes.
    Q: What was the defendant’s response when
    you told him you didn’t believe him?
    A: Preston never denied receiving blow jobs
    from [Rosenberg] . . . [he] stated that he
    could not remember receiving blow jobs
    from [Rosenberg] because that is when he
    was a meth addict.”
    Preston made no objection about this testimony, and the
    government, citing an unpublished disposition, argues that it
    was not plain error to allow it because Dellacroce was
    merely describing an interrogation technique—he told
    Preston he did not believe him in order to try and elicit a
    confession. The record before us does not support the
    government’s position that Agent Dellacroce was testifying
    to his investigative techniques—or that the jury would have
    any way of knowing that. We simply have the question,
    “Did you indicate to the defendant that you did not believe
    him?” and the answer, “Yes”—a statement from a witness
    that the defendant’s denial was not credible. Moreover, no
    curative instruction was given. It was thus plainly erroneous
    for the district court to allow Dellacroce to testify that he did
    not believe Preston’s denial of Rosenberg’s allegations. We
    will weigh Dellacroce’s statements in our cumulative error
    analysis.
    UNITED STATES V. PRESTON                   17
    B. Preston’s Alleged 2003 Child-Incest Fantasy
    Preston contends that the district court erred in admitting
    the testimony of his ex-wife—Andrea Preston—that in
    2003, five years after Preston allegedly abused Rosenberg,
    she witnessed Preston masturbating while looking at a
    computer image of his eight-year-old stepson clothed in
    socks and underwear.
    Before trial, defense counsel moved to exclude this
    testimony as impermissible propensity evidence and the
    government responded that it should be admitted under Fed.
    R. Evid. 404(b) to prove Preston’s intent to molest
    Rosenberg. In a written order, the trial court denied the
    motion and found the evidence to be admissible under the
    intent exception to Rule 404(b). At trial, as expected,
    Andrea Preston testified to having witnessed the defendant
    masturbating to a picture of his eight-year-old stepson some
    five years after the abuse charged in the indictment allegedly
    occurred. In its summation, the government reiterated her
    testimony, adding that this evidence, “only goes to
    [Preston’s] intent and that’s it.”
    For the reasons set forth below, we find that the district
    court abused its discretion in allowing Ms. Preston’s
    testimony.
    1. Legal Standards
    Rule 404 of the Federal Rules of Evidence creates a
    general prohibition on using evidence of a person’s character
    or character trait in order to prove that on a particular
    occasion a person acted in accordance with that character or
    trait. Fed. R. Evid. 404(a)(1). There is also a particular
    prohibition against using evidence of other crimes, wrongs,
    or acts to prove a person’s character in order to show that on
    18              UNITED STATES V. PRESTON
    a particular occasion the person acted in accordance with
    that character. Fed. R. Evid. 404(b)(1). This same Rule,
    however, carves out certain “permitted uses” of such
    evidence. Specifically, evidence of other crimes, wrongs, or
    acts may be admissible “for another purpose, such as proving
    motive, opportunity, intent, preparation, plan, knowledge,
    identity, absence of mistake, or lack of accident.” Fed. R.
    Evid. 404(b)(2). Even where 404(b) evidence falls within a
    permitted purpose, it should be excluded, under Rule 403, if
    the court finds that its probative value is substantially
    outweighed by a danger of unfair prejudice. Fed. R. Evid.
    403.
    This case involves evidence of an “other act” that
    occurred some five years after the events charged in the
    indictment. We have held that evidence of a subsequent act
    may be admitted under 404(b). United States v. Lloyd,
    
    807 F.3d 1128
     (9th Cir. 2015). But in introducing other act
    evidence, the government always must show: (1) that the act
    tends to prove a material element or point, (2) that the act is
    not too remote in time from the crime charged, and (3) that
    the evidence is sufficient to support a finding that the
    defendant committed the subsequent act. 
    Id.
    When seeking to introduce other act 404(b) evidence for
    the purpose of proving intent, the proposing party must show
    that the other “act is similar to the offense charged.” United
    States v. Hadley, 
    918 F.2d 848
    , 851 (9th Cir. 1990)
    (evidence of prior isolation and sodomy of students
    sufficiently similar to charged crime of isolation and sodomy
    of a student); see also, e.g., United States v. Vo, 
    413 F.3d 1010
    , 1018–19 (9th Cir. 2005) (prior conviction for cocaine
    trafficking sufficiently similar to charged crime of
    methamphetamine distribution); United States v. Ayers,
    
    924 F.2d 1468
    , 1474 (9th Cir. 1991) (prior purchase of
    UNITED STATES V. PRESTON                    19
    numerous cashier’s checks, for amounts that did not trigger
    banks’ duty to report them to the Internal Revenue Service,
    sufficiently similar to charged crime of tax evasion). This
    showing of similarity is necessary because if the other act is
    not sufficiently similar to the crime charged, “it does not tell
    the jury anything about what the defendant intended . . .
    unless, of course, one argues (impermissibly) that the [other]
    act establishes that the defendant has criminal propensities.”
    United States v. Miller, 
    874 F.2d 1255
    , 1269 (9th Cir. 1989).
    2. Analysis
    In a written Order admitting Ms. Preston’s testimony
    about the 2003 masturbation incident, the district court held
    in relevant part:
    “Evidence that the Defendant was sexually
    interested in a young boy approximately the
    same age the victim was at the time of the
    charged events could make it more likely that
    the Defendant had the intent to commit
    sexual acts in this case or that such acts were
    not a mistake. The evidence is, therefore,
    relevant. The similarity between the victim’s
    age at the time of the charged acts and the age
    of the boy in the image creates a high
    probative value for that evidence, and it is not
    substantially outweighed by any prejudice
    caused to the Defendant.
    Finally, the evidence is sufficiently similar
    under Rule 404(b) to show the Defendant’s
    intent because of the similarity in the age of
    the victim and boy in the image;
    approximately five years subsequent is not
    too remote in time, see United States v.
    20               UNITED STATES V. PRESTON
    Johnson, 
    132 F.3d 1279
    , 1283 (9th Cir.
    1997); eyewitness testimony from the
    Defendant’s ex-wife is sufficient to introduce
    the evidence to the jury; and, the evidence is
    probative of the Defendant’s intent to engage
    in sexual conduct, an essential element of at
    least one charged act.”
    On appeal, Preston argues that the subsequent act was
    not sufficiently similar to the crime charged to be properly
    admitted via 404(b) under an intent theory of admissibility.
    Moreover, Preston contends that the district court should
    have excluded the evidence under Rule 403, because intent
    was not in dispute in this case and therefore any marginal
    probative value of this evidence was substantially
    outweighed by the danger that the jury would draw a
    propensity inference against Preston on the basis of his ex-
    wife’s highly prejudicial testimony.
    We agree with Preston. In admitting Andrea Preston’s
    testimony, the district court abused its discretion in two
    ways. First, under Hadley, the district court must find that
    the “other act” sought to be introduced under 404(b) to prove
    intent is similar to the crime charged. Here, the district court
    found only that the age of Preston’s stepson in the
    photograph to which Preston masturbated (8 years old) was
    similar to Rosenberg’s age when Preston allegedly molested
    him (10 years old). This finding does not adequately explain
    or discuss how the act of masturbating to a picture of a boy
    in underwear—a non-criminal act—is similar to the crime of
    real-life sexual abuse of a child. The district court therefore
    abused its discretion in admitting Ms. Preston’s testimony
    without complying with Rule 404(b)’s similarity
    requirement expressed in Hadley and other cases.
    UNITED STATES V. PRESTON                          21
    Second, the district court abused its discretion by finding
    the evidence admissible under Rule 403. Rule 403 is meant
    to “ensure that potentially devastating evidence of little
    probative value will not reach the jury.” United States v.
    Lemay, 
    260 F.3d 1018
    , 1026 (9th Cir. 2001). We have long
    held that “[w]here the evidence is of very slight (if any)
    probative value, it’s an abuse of discretion to admit it if
    there’s even a modest likelihood of unfair prejudice or a
    small risk of misleading the jury.” United States v. Wiggan,
    
    700 F.3d 1204
    , 1213 (9th Cir. 2012) (quoting United States
    v. Hitt, 
    981 F.2d 422
    , 424 (9th Cir.1992)).
    Evidence of a subsequent masturbation incident linked
    to child-incest fantasy is highly prejudicial to a defendant
    charged with child molestation; a jury confronted with such
    disgusting evidence is likely to conclude that the defendant
    “is the type” to molest a child. See United States v. Curtin,
    
    489 F.3d 935
    , 964 (9th Cir. 2007) (Kleinfeld, J. concurring)
    (“incest has had a rare power to disgust” (quoting Richard
    A. Posner, Sex and Reason 201 (1994)). Moreover, as this
    Court has recognized, in many cases, the “link between
    fantasy and intent is too tenuous to be probative,” as
    “[p]eople commonly fantasize about doing things they have
    no intention of actually doing.” 2 And fantasy is even less
    probative of intent in cases where, as here, intent is not
    actually disputed—that is, where the defense is a general
    denial of committing the offense, rather than an admission
    to an act coupled with a specific denial of the requisite intent.
    When the defendant generally denies committing the offense
    2
    Where the other acts offered are specific incidents of prior child
    molestation—which would clearly be similar to the charged offense
    here—Federal Rule of Evidence 414 expressly permits them to be
    admitted “on any matter to which it is relevant.” Other acts of mere
    fantasy or auto-eroticism, however, are not permitted under this rule.
    22                  UNITED STATES V. PRESTON
    of sexual abuse, the victim’s testimony that the abuse
    occurred—if accepted by the jury—effectively proves all of
    the elements of the offense, including that the defendant
    intended to seek sexual gratification. In such circumstances,
    proof of another act showing a defendant’s sexual
    proclivities toward children contributes little to the
    government’s case. It just tempts the jury to draw the
    impermissible inference that the defendant has a propensity
    to sexually abuse children. 3
    Here, the “visceral impact” of this evidence “far exceeds
    [its] probative value.” See Hitt, 921 F.2d at 424 (finding that
    mere “photographs of firearms often have a visceral impact
    that far exceeds their probative value”). Because Preston’s
    alleged 2003 incest fantasy had little probative value (abuse
    and fantasy are dissimilar acts, and Preston did not put intent
    at issue in the case), and great potential to inspire prejudice
    (incest is a uniquely disgusting act, and juries are apt to draw
    a propensity inference from other act evidence), the district
    court abused its discretion in admitting it.
    In sum, the district court abused its discretion in
    (1) admitting Andrea Preston’s testimony under Rule 404(b)
    3
    This scenario stands in contrast to sexual misconduct cases where
    a defendant puts intent at issue and other act evidence of their deviant
    fantasies, therefore, increases in probative value. See, e.g., Curtin,
    
    489 F.3d at 950
     (child-sex stories in defendant’s possession probative of
    intent where he was charged with attempting to engage in a sexual act
    with a minor and admitted to talking to an individual online who
    identified as a minor but testified that he intended her to be an adult
    roleplaying a teen); United States v. Cunningham, 607 F. App’x. 715
    (9th Cir. 2015) (child pornography that the defendant downloaded
    probative of intent where he was charged with intending to use a child to
    produce a sexually explicit visual depiction and admitted taking pictures
    of a child but testified that he did not intend for any of the pictures to be
    pornographic).
    UNITED STATES V. PRESTON                     23
    without first establishing how Preston’s masturbation
    fantasy was similar to sexually abusing Rosenberg, and
    (2) admitting the evidence under Rule 403 given its slight
    probative value and high risk of unfair prejudice. We will
    analyze this prejudicial effect within our cumulative error
    analysis.
    C. Prosecutorial Misconduct
    The next set of alleged trial errors relates to prosecutorial
    misconduct. Specifically, Preston argues that the prosecutor
    improperly commented on Preston’s decision not to testify,
    impermissibly vouched for Rosenberg, and misstated the
    evidence in summation.
    1. Commenting on Preston’s Failure to Testify
    To realize the Fifth Amendment’s guarantee against
    compelled self-incrimination, the Supreme Court has held
    that it is improper for a prosecutor to comment on a
    defendant’s decision not to testify. Griffin v. California,
    
    380 U.S. 609
    , 615 (1965). The government may comment
    on the defense’s argument, but may not make a comment “‘if
    it is manifestly intended to call attention to the defendant’s
    failure to testify, or is of such a character that the jury would
    naturally and necessarily take it to be a comment on the
    failure to testify.’” Rhoades v. Henry, 
    598 F.3d 495
    , 510 (9th
    Cir. 2010) (quoting Lincoln v. Sunn, 
    807 F.2d 805
    , 809) (9th
    Cir. 1987)). Thus, where a defendant is the only possible
    witness who could rebut the testimony of the government
    witnesses, it is inappropriate for a prosecutor to point out the
    lack of witnesses or testimony on the other side, because
    “‘this can only cause the jury to naturally look to the only
    other evidence there is—the defendant—and, hence, this
    could be a prohibited comment on the defendant’s failure to
    24                UNITED STATES V. PRESTON
    testify.’” Lincoln at 809 (quoting United States v. Cianciulli,
    
    482 F. Supp. 585
    , 591–92 (E.D. Pa. 1979)).
    Preston argues that the prosecutor impermissibly
    commented on his failure to testify when the government
    stated in summation, “[Rosenberg] was sexually abused. He
    told you under oath on the stand. There’s no evidence,
    there’s no testimony in this case that contradicts Tim
    Rosenberg’s testimony.”
    Here, although the prosecutor did not mention Preston
    by name, the government’s comment was impermissible
    under Lincoln because it directed the jury’s attention to a
    lack of testimony contradicting Rosenberg. The only person
    who could have provided testimony to contradict
    Rosenberg’s version of the events was Preston, since the
    only other two persons present in the home at the time the
    abuse allegedly occurred—Barry Rosenberg and Andrea
    Preston—testified that they never suspected anything. In
    this context, it was plain error for the prosecutor to state that
    “there’s no testimony in this case that contradicts Tim
    Rosenberg’s testimony,” because the jury would have
    immediately inferred that they did not hear testimony from
    Preston, the only witness who could have directly
    contradicted Rosenberg’s allegations. 4 We reserve an
    analysis of the prejudicial effect of the prosecutor’s
    comment for our cumulative error analysis.
    4
    Moreover, the prosecutor’s statement that there was no evidence
    contradicting Rosenberg’s testimony was, strictly speaking, incorrect:
    both Agent Dellacroce and Detective Rodriguez testified that, during
    their respective interviews of Preston, he denied Rosenberg’s
    allegations.
    UNITED STATES V. PRESTON                 25
    2. Vouching for Rosenberg
    Preston further argues that the government
    impermissibly vouched for the veracity of Rosenberg’s
    testimony. “Improper vouching consists of placing the
    prestige of the government behind a witness through
    personal assurances of the witness’s veracity, or suggesting
    that information not presented to the jury supports the
    witness’s testimony.” United States v. Ruiz, 
    710 F.3d 1077
    ,
    1085 (9th Cir. 2013) (citation omitted).
    Preston contends that the government offered personal
    assurances of Rosenberg’s veracity in the following
    instances:
    1. In opening, the government stated, “The
    truth always comes out no matter how many
    years have passed . . . And the truth in this
    case is that the defendant, Christopher
    Preston, put his penis in ten-year-old
    Timothy Rosenberg’s mouth . . . .”
    2. In summation, the government reiterated,
    “The truth will always come out . . . . And in
    this case the truth has come out.” The
    government further noted, “In the end . . .
    ladies and gentlemen, the truth came out of
    the mouth of Tim Rosenberg.”
    3. In rebuttal, referring to Rosenberg’s
    testimony, the government stated, “And that
    is the truth in this case. That is the evidence
    in this case.”        Later in rebuttal, the
    government added, “[Rosenberg] has come
    here to court . . . to testify to you as to the
    truth of what happened . . . the
    26              UNITED STATES V. PRESTON
    uncontroverted truth as to what happened.”
    The government also stated, “the crux of this
    case, the core of the truth of what Timothy
    Rosenberg testified to in detail on the stand
    under oath is that the defendant sexually
    molested him as a child. . . .” Finally, the
    government declared, “[Rosenberg] probably
    wishes that the drinking and the drugs . . .
    could erase this memory of what happened.
    But it can’t. And it didn’t. Because it is the
    truth of what happened.”
    The defense objected only to the final comment.
    Although the court overruled the objection, the government
    did remind the jury that “what attorneys argue to you
    obviously is not evidence” and stated “we are not vouching
    for [Rosenberg] . . . what the government is saying is this is
    what the evidence shows, this is what the testimony shows,
    this is what—Tim’s testimony has been corroborated.”
    In United States v. Weatherspoon, we held that the
    government improperly vouched for its witness where the
    prosecutor stated “three times over in rapid succession that a
    witness ‘told the truth.’” 
    410 F.3d 1142
    , 1148 (9th Cir. 2005)
    (noting that the “ethical bar is set higher for the prosecutor
    than for the criminal defense lawyer”). In this case, the
    prosecutor stated at least three times that Rosenberg told the
    truth or that his allegations were true ((1) “the truth in this
    case is that [Preston] put his penis in [Rosenberg’s mouth];”
    (2) “In the end . . . the truth came out of the mouth of
    [Rosenberg]; and (3) “Rosenberg probably wishes that the
    [drugs] could erase this memory . . . But they can’t . . .
    Because this is the truth of what happened.”). As in
    Weatherspoon, this amounted to improper vouching. The
    district court abused its discretion in allowing the final
    UNITED STATES V. PRESTON                     27
    comment over defense counsel’s objection. Accordingly,
    these statements will factor into our cumulative error
    analysis.
    3. Misstatement of the Evidence
    Finally, Preston argues that the government misstated
    the evidence in summation. A prosecuting attorney may not
    misstate or manipulate the evidence at trial. Darden v.
    Wainwright, 
    477 U.S. 168
    , 182 (1986); United States v.
    Kojayan, 
    8 F.3d 1315
    , 1320–22 (9th Cir. 1993).
    During summation and again in rebuttal, government
    counsel stated to the jury, without objection, that the defense
    was asking them to believe that Rosenberg is “making up
    these allegations because he is a vicious, cold, calculating
    human being,” and that “the only two possibilities in this
    case are that Rosenberg is telling the truth,” or that he “is
    truly despicable and evil and lying about everything for no
    reason.” This argument misstates the evidence. The defense
    presented no evidence suggesting that Rosenberg was a
    “vicious” or “evil” liar, nor was this line of attack part of any
    argument advanced by the defense. Instead, the defense
    simply provided expert opinion testimony that Rosenberg
    may have experienced memory problems as a consequence
    of his drug use. The defense’s memory expert, Dr. Simpson,
    testified that individuals, and especially drug addicts, can
    make “source monitoring errors,” whereby they confuse an
    imagined, dreamed, or hallucinated event with one that
    actually occurred. The prosecutor posed a false choice to the
    jury (that either what Rosenberg is saying is the truth, or else
    he is an evil liar). The government also misstated the nature
    of the evidence (which was actually that Rosenberg could be
    misremembering or could be telling the truth). It was plainly
    improper for the prosecutor to characterize the evidence in
    28              UNITED STATES V. PRESTON
    this manner, and the government’s statements will be
    factored into our cumulative error analysis.
    D. Cumulative Error Analysis
    Having identified the trial errors in this case, we turn
    now to a discussion of whether their cumulative effect
    prejudiced Preston. Below is a summary of the errors at
    trial—including a description of any mitigating or
    aggravating factors (such as a curative instruction or a jury
    question indicating that a juror did not follow a curative
    instruction)—followed by an analysis of these errors within
    the context of the trial and in view of the strength of the
    government’s case.
    1. Trial Errors
    The first series of errors relates to the opinion testimony
    that bolstered the veracity of Rosenberg’s testimony.
    Bussart stated on three separate occasions that she believed
    Rosenberg’s allegations were true; Barry Rosenberg
    testified that he did not question his brother’s allegations
    because they made sense to him; and Agent Dellacroce
    testified that he did not believe Preston when he denied
    Rosenberg’s allegations. In addition, Bussart impermissibly
    offered her opinion that victims’ sexual abuse allegations are
    generally true and that Rosenberg’s emotions were similar
    to those of a person who has suffered sexual abuse.
    The court did give a curative instruction following
    Bussart’s testimony, explaining to the jury that they must
    disregard any witness’s opinion about the truthfulness of
    another witness. However, after Agent Dellacroce testified
    that he did not believe Preston’s denial two separate jurors
    sought to ask Agent Dellacroce—who testified after
    Bussart—why he did not believe Preston. This suggests that
    UNITED STATES V. PRESTON                    29
    the jurors focused on Dellacroce’s opinion that Preston was
    not believable, and that they had trouble absorbing the
    court’s earlier instruction to disregard witness testimony
    about the truthfulness of others. See Avila v. Los Angeles
    Police Dept., 
    758 F.3d 1096
    , 1118 n.17 (9th Cir. 2014)
    (Vinson, J., dissenting) (jury questions can serve as evidence
    of the effectiveness of curative instructions).
    Next, the trial court erred in allowing Ms. Preston to
    testify that in 2003 she saw Preston masturbating to a picture
    of his eight-year-old stepson in socks and underwear. In
    summation, the government reiterated her testimony and
    added that this evidence, “only goes to [Preston’s] intent and
    that’s it.”
    Finally, the errors included the following conduct by the
    prosecutor: (1) commenting on Preston’s decision not to
    testify, (2) asserting at least three times that Rosenberg was
    telling the truth (which the prosecutor tried to mitigate after
    the fact, by reminding the jury that what attorneys argue is
    not evidence), and (3) suggesting inaccurately that the
    evidence presented a choice between either believing
    Rosenberg and finding Preston guilty, or necessarily finding
    that Rosenberg was a diabolical liar and that Preston was not
    guilty.
    2. Cumulative Effect
    The government correctly highlighted the key issue in
    this case in its summation to the jury by stating that, “[i]n
    this case really there’s only one question: do you believe Tim
    Rosenberg or not?” The cumulative effect of these trial
    errors prejudiced Preston because almost all of them
    implicated this very question. Because this cumulative effect
    is so clear, we do not decide the individual prejudice of any
    of the errors.
    30               UNITED STATES V. PRESTON
    Three of the errors involve statements—by Bussart,
    Barry Rosenberg, and the prosecutor—either asserting or
    implying that Tim Rosenberg’s testimony was true. Two
    others, Agent Dellacroce’s testimony and the prosecutor’s
    comment on Preston’s decision not to testify, improperly
    suggested the inverse—that Preston’s denial of the
    allegations was false. Moreover, the prosecutor suggested
    that the jury could only find Preston not guilty by deciding
    that Tim Rosenberg—for whom the government and many
    of their witnesses had vouched—was a diabolical liar. In
    this way, the errors at trial were not isolated. Indeed, they
    stand in “unique symmetry such that they amplify each other
    in relation to [the] key,” and only, “contested issue in the
    case”—whether the alleged victim, Tim Rosenberg, was
    telling the truth. Ybarra v. McDaniel, 
    656 F.3d 984
    , 1001
    (9th Cir. 2011) (quoting Parle v. Runnels, 
    505 F.3d 922
    , 933
    (9th Cir. 2007)).
    The only error in this case that did not relate to bolstering
    Rosenberg as a truth-teller was hardly insignificant. Andrea
    Preston’s testimony about Preston’s masturbation suggested
    he had the character of a child molester. Where intent was
    not in dispute, allowing such inflammatory evidence likely
    had a prejudicial effect by encouraging the jury to believe
    that Preston was the type of person who would sexually
    abuse Rosenberg.
    Moreover, the government’s case hinged almost entirely
    on Rosenberg’s testimony. The government points out that
    Preston’s denials of the allegations were not credible
    because he told Agent Dellacroce that he “could not
    remember” whether he received oral sex from Rosenberg.
    But Agent Dellacroce equivocated on this point and the
    interview was not recorded. The only other witnesses
    present in the Preston home when the molestation allegedly
    UNITED STATES V. PRESTON                    31
    took place, Barry Rosenberg and Andrea Preston, testified
    that they never suspected anything. Thus, the only
    substantial proof that the government offered at trial was
    Rosenberg’s testimony.
    In sum, there were multiple errors in the trial that
    unfairly bolstered the victim’s credibility, and an additional
    error that portrayed the defendant as the “type of person”
    who would molest a child. In addition, the government’s
    case hinged entirely on Rosenberg’s credibility, with little
    additional proof to corroborate his allegations. The
    cumulative effect of these errors rendered Preston’s trial
    fundamentally unfair, and his conviction must therefore be
    reversed and the case remanded for a new trial.
    IV.    Conclusion
    For the foregoing reasons, the matter is REVERSED
    AND REMANDED FOR PROCEEDINGS NOT
    INCONSISTENT WITH THIS OPINION.
    KOZINSKI, Circuit Judge, concurring:
    I join the majority opinion, including Part III.B, because
    the district court erred in admitting the testimony about
    Preston’s masturbation to establish intent. The government
    provided no other rationale when seeking to introduce this
    evidence at trial. In the event of a retrial, I do not read our
    ruling as precluding the government from identifying a
    different basis on which to seek admission of the testimony,
    such as to show that Preston was sexually aroused by young
    boys.