United States v. Pablo

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 16, 2010

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 09-2091
JONATHAN PABLO,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:06-cr-00759-MCA-2)

Mark T. Baker, Long, Pound & Komer, P.A., Santa Fe, New Mexico, for Defendant-
Appellant.

Steven Yarbrough, Assistant United States Attorney (Gregory J. Fouratt, United States
Attorney, and Laura Fashing, Assistant United States Attorney, on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, Chief Circuit Judge, EBEL and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

This appeal arises out of Jonathan Pablo’s conviction by a jury for vaginal rape,

kidnapping, assault resulting in serious bodily injury, and carjacking. Pablo was tried

with a codefendant, Isaac Gordo, whom the jury convicted on similar counts. Here, we
are faced only with Pablo’s appeal, and he raises three challenges to his convictions: (1)

that the district court deprived him of his confrontation rights under the Sixth

Amendment by admitting testimony of a DNA expert, Kortney Snider, when that expert

relied on reports prepared by analysts not called to testify and conveyed the contents of

those reports to the jury; (2) that the prosecutor and district court impermissibly

interfered with his right to present a defense by raising the specter of self-incrimination to

dissuade two defense witnesses, Zachary and Alzado Gordo, from testifying; and (3) that

the district court erred by excluding certain evidence under Federal Rule of Evidence

412. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons that

follow, we AFFIRM.1

BACKGROUND

The events that led to the rape charges against Isaac Gordo and Jonathan Pablo

began on the night of January 29, 2005, and extended into the morning of January 30.2

We start our recitation of the facts by noting that throughout the course of the following

events, all parties involved drank at least some alcohol, but the defendants consumed

particularly large quantities.

1
Because the crimes occurred on an Indian reservation and the defendants were Indians,
the district court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C. § 1153.
2
Although there was conflicting testimony regarding the facts underlying the charges
against Pablo and his co-defendant, we recite the following facts in the light most
favorable to the jury’s verdict. See Untied States v. Carnegie, 533 F.3d 1231, 1234 (10th
Cir. 2008).

2
 The rape victim, L.R.H., who was sixteen at the time, and the defendants first

encountered each other at a local dance in Nageezi, New Mexico. L.R.H. attended the

dance accompanied by her boyfriend, Dave Keetso, and his cousin. The defendants

separately attended this dance and hung out with Isaac’s cousins, Zachary and Alzado

Gordo. Although Isaac Gordo testified that L.R.H. spoke to him at the dance and Dave

Keetso testified that he encountered the defendants at the dance, little interaction

occurred between these two groups until after the dance ended.3

Snow fell on the night of the dance, and by the end of the dance, the roads had

become snow-covered. When Dave left the dance, he drove his cousin’s Chevy Cavalier

with his cousin in the passenger seat and L.R.H. sitting in the back seat, but Dave stopped

multiple times so his cousin could go to the bathroom. Upon stopping just before a local

convenience store, Isaac Gordo, Jonathan Pablo, Alzado Gordo, and Zachary Gordo

pulled up in Isaac’s Ford Focus. After the parties conversed for a brief period, both

groups drove up the road where everyone except Dave Keetso and L.R.H., who had fallen

asleep in the back of the Cavalier, consumed more alcohol. Thirty minutes later, the

groups continued down the road until Isaac’s Ford Focus became badly stuck in the mud

and snow.

When Isaac’s car became stuck, Dave Keetso agreed to drive his cousin’s Cavalier

to pick up his own truck to pull the Focus out. Dave, his cousin, L.R.H., and Isaac drove

3
Jonathan Pablo attempted to introduce evidence that witnesses observed L.R.H. at the
dance in a state of partial undress in the presence of two other men, but the district court
excluded that evidence under Federal Rule of Evidence 412. Pablo challenges that ruling
on appeal.

3
together to pick up the truck and chains.4 When they arrived at the truck, L.R.H. woke up

and climbed into Dave’s truck, as did Isaac. Dave’s cousin drove his Cavalier back

alone. After some delay, they returned to where the Ford Focus had become stuck,

hooked up the chains, and pulled it out.

Once Dave pulled Isaac’s car out of the ditch, Isaac asked Dave to follow him in

his truck on the dirt road at least until where the pavement began again.5 Presumably,

Isaac was accompanied in his Ford Focus by Pablo and his cousins, Zachary and Alzado

Gordo. Dave began to follow Isaac to the paved road but Isaac stopped about a mile

before where the pavement begins and signaled for Dave to stop as well, which he did.

While they were stopped, Dave exited his car to unlock his four wheel drive. At this

point, Isaac approached Dave from behind and began choking him before hitting him

with a shovel. Although Dave Keetso also testified that Pablo attacked him and hit him

with a shovel, the jury convicted him only of assault resulting in serious bodily injury; it

acquitted him on the charge of assault with a dangerous weapon for his alleged use of a

shovel in the altercation.

As Dave Keetso remained on the ground recovering from the defendants’ beating,

the defendants jumped into Dave’s truck and drove away, with L.R.H. still asleep in it.

4
Pablo also complains on appeal about the district court’s decision to exclude under
Federal Rule of Evidence 412 Gordo’s testimony that L.R.H. made sexual advances
towards Pablo while in the backseat of the Cavalier, though, as we discuss later, precisely
when these alleged advances occurred is unclear.
5
The testimony is not clear as to what happened to Dave’s cousin at this point, though it
appears he drove away separately.

4
L.R.H., who had fallen back asleep, awoke to find herself stuck between Isaac and Pablo,

which left her “in shock and just frightened.” (Supp. R. vol. 3 at 425:21-22.) Although

L.R.H. attempted to climb out of the truck, Pablo prevented her from doing so. Isaac

then drove farther down the road before stopping to go to the bathroom along the road.

L.R.H. again attempted to escape by driving away as Isaac and Pablo went to the

bathroom, but Isaac foiled her efforts.

Eventually Isaac got the car stuck in a deep ditch a bit farther down the road.

L.R.H’s testimony indicated that a gray car matching the description of Isaac’s Ford

Focus was present for at least some time when Isaac got the truck stuck, and if it were

Isaac’s Ford Focus, it was likely driven by Isaac’s cousins Alzado and Zachary Gordo.

Isaac and Pablo left the truck for a brief period, and L.R.H. again attempted to drive away

with no success. Isaac then returned to the truck, got in, said, “Hey, baby,” violently

pulled down L.R.H.’s pants, mounted her, and forcefully penetrated her vagina with his

penis. (Id. at 429-31.) Afterwards, Isaac left the truck, and Pablo climbed in. He said,

“Come on, baby,” put on a condom, mounted her and penetrated her vagina despite her

efforts to resist. (Id. at 431-32.) L.R.H. also testified that Pablo forced her to perform

oral sex, but the jury acquitted Pablo on this charge.

Based on these events, Isaac Gordo and Jonathan Pablo were both charged with

vaginally raping L.R.H., kidnapping L.R.H., assaulting Dave Keetso with a dangerous

weapon, assaulting Dave Keetso such that serious bodily injury resulted, and carjacking.

Pablo was also charged with sexual assault for allegedly forcing L.R.H. to perform oral

sex on him. The jury convicted Gordo on all counts. It convicted Pablo on all counts

5
except, as noted, on the charges of assault with a deadly weapon and sexual assault via

forced oral sex. Pablo was sentenced to a term of 200 months’ imprisonment for the

sexual assault, kidnapping, and carjacking convictions to run concurrently with a term of

120 months’ imprisonment for the assault conviction. Pablo now appeals his convictions.

DISCUSSION

I. Confrontation Clause

As part of the state crime lab’s analysis of the evidence in this case, lab analyst

Kristin Dick prepared a DNA report and lab analyst Benita Boyd prepared a serology

report. Originally, the government intended to call Ms. Dick and Ms. Boyd to testify

against Pablo; however, they ultimately called only Kortney Snider, another lab analyst,

to testify as an expert witness regarding the DNA analysis and serology analysis

performed by the crime lab.6 Ms. Snider’s testimony conveyed to the jury that the DNA

analysis connected Pablo to DNA found on L.R.H.’s genitalia as well as to a condom

found at the scene of the rape.

On appeal, Pablo argues that Ms. Snider’s testimony violated his confrontation

rights. Pablo points out that Crawford v. Washington, 541 U.S. 36 (2004), restricts the

admissibility of out-of-court testimonial statements against a defendant. Under

Crawford, out-of-court testimonial statements may be admitted against a defendant only

if either the declarant of those statements testifies at trial or the declarant is now

6
Ms. Dick ultimately could not testify because she became seriously ill while pregnant.
The record is unclear as to why Ms. Boyd did not testify. Ms. Snider had no role in
preparing Ms. Dick’s report or Ms. Boyd’s report.

6
unavailable to testify and the defendant had a prior opportunity to cross-examine the

declarant. Id. at 54. In this case, Pablo argues that under the Supreme Court’s recent

decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), which held

that a forensic analyst’s statements in an affidavit that drugs connected to a defendant

were cocaine constituted out-of-court testimonial statements, Ms. Dick’s DNA report and

Ms. Boyd’s serology report also necessarily contained out-of-court testimonial

statements. He further argues that the government introduced these out-of-court

testimonial statements against him through Ms. Snider’s testimony, which he claims

simply parroted Ms. Dick’s and Ms. Boyd’s reports. Pablo points out that neither Ms.

Dick nor Ms. Boyd were called to testify against him and, even assuming they were

unavailable to testify, he never had a prior opportunity to cross-examine these declarants.

Therefore, according to Pablo, Ms. Snider’s testimony deprived him of his constitutional

right to cross-examine Ms. Dick and Ms. Boyd.

The government counters that Ms. Snider testified as an expert and simply based

her opinions on Ms. Dick’s and Ms. Boyd’s reports. It argues that Federal Rule of

Evidence 703 permits this type of testimony, and, at least prior to Melendez-Diaz, we

have allowed experts to rely on the notes of other lab technicians. See United States v.

Davis, 40 F.3d 1069, 1075 (10th Cir. 1994). The government argues that this is precisely

what Ms. Snider did, and Melendez-Diaz has not changed our law to prohibit an expert

from relying on another’s notes.

For the reasons that follow, we find no reversible error.

A. Standard of Review

7
 Pablo concedes that he neglected to raise his Confrontation Clause objection in the

district court. Therefore, we review Pablo’s claim for plain error. United States v.

James, 257 F.3d 1173, 1182 (10th Cir. 2001). Under plain error review, we will notice

the alleged error and grant the appellant relief only when four requirements are met: (1)

an error occurred; (2) the error is plain or obvious; (3) the error affects substantial rights;

and (4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See id. We apply these requirements “less rigidly when reviewing a

potential constitutional error.” Id.

B. Analysis

The Confrontation Clause restricts the admission of testimonial statements against

a defendant. A testimonial statement is a statement that a reasonable person in the

position of the declarant would objectively foresee might be used in the investigation or

prosecution of a crime. See United States v. Pursley, 577 F.3d 1204, 1223 (10th Cir.

2009), cert. denied, 130 S. Ct. 1098 (2010). A district court may not admit testimonial

statements against a defendant if the declarant does not testify, unless the declarant is

unavailable to testify and the defendant has had a prior opportunity to cross-examine the

witness. See Melendez-Diaz, 129 S. Ct. at 2531; Crawford, 541 U.S. at 54. As stated

previously, Pablo argues that Ms. Dick’s DNA report and Ms. Boyd’s serology report

contained testimonial statements because they prepared their reports as part of the

investigation against Pablo. To resolve this appeal, we can assume, without deciding,

that Pablo is correct.

8
 A defendant’s confrontation rights are implicated by the admission of testimonial

statements against him, however, only when they are admitted to establish the truth of the

matter asserted in the statement. See Crawford, 541 U.S. at 60 n.9 (explaining that the

Confrontation Clause “does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted”). A prime example of where

testimonial hearsay may be admitted for a purpose other than to establish the substantive

truth of the hearsay, and one pertinent to this case, is when an expert witness testifies

regarding the out-of-court development of facts or data on which she based her expert

opinion.

Federal Rule of Evidence 703 authorizes an expert to testify to an opinion she

formed even if she based that opinion on otherwise inadmissible facts or data, which at

times may include out-of-court testimonial statements. See Fed. R. Evid. 703; see also

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009), cert. denied, 130 S. Ct. 2128

(2010). Although an expert often will not disclose this otherwise inadmissible

information to a jury, Rule 703 permits disclosure to the jury if “the court determines that

[its] probative value in assisting the jury to evaluate the expert’s opinion substantially

outweighs [its] prejudicial effect.” Fed. R. Evid. 703. However, the disclosure of this

otherwise inadmissible information is to assist the jury in evaluating the expert’s opinion,

not to prove the substantive truth of the otherwise inadmissible information. See United

States v. Farley, 992 F.2d 1122, 1125 (10th Cir. 1993) (“Rule 703 would allow the expert

to testify regarding the information, even if the evidence would not otherwise be

admissible.”); Wilson v. Merrell Dow Pharm., Inc., 893 F.2d 1149, 1153 (10th Cir.

9
1990) (“The hearsay is admitted for the limited purpose of informing the jury of the basis

of the expert’s opinion and not for proving the truth of the matter asserted.”). Therefore,

where an expert witness discloses otherwise inadmissible out-of-court testimonial

statements on which she based her opinion, the admission of those testimonial statements

under Rule 703 typically will not implicate a defendant’s confrontation rights because the

statements are not admitted for their substantive truth. See Crawford, 541 U.S. at 60 n.9.

The extent to which an expert witness may disclose to a jury otherwise

inadmissible testimonial hearsay without implicating a defendant’s confrontation rights,

however, is a question of degree. See Johnson, 587 F.3d at 635 (“[A]n expert’s use of

testimonial hearsay is a matter of degree.”). If an expert simply parrots another

individual's testimonial hearsay, rather than conveying her independent judgment that

only incidentally discloses testimonial hearsay to assist the jury in evaluating her opinion,

then the expert is, in effect, disclosing the testimonial hearsay for its substantive truth and

she becomes little more than a backdoor conduit for otherwise inadmissible testimonial

hearsay. See, e.g., id. (“Allowing a witness simply to parrot out-of-court testimonial

statements of cooperating witnesses and confidential informants directly to the jury in the

guise of expert opinion would provide an end run around Crawford.” (quotations

omitted)); United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007) (explaining that

because an expert witness may “form an opinion by applying her expertise to otherwise

inadmissible evidence,” including testimonial hearsay, and convey that information to the

jury for purposes of evaluating her opinion, the admission of the testimonial hearsay

deprives a defendant of his confrontation rights only if the expert conveys the testimonial

10
hearsay “directly to the jury in the guise of an expert opinion”); cf. United States v.

Affleck, 776 F.2d 1451, 1457-58 (10th Cir. 1985) (finding no error in a district court’s

admission of hearsay statements relied upon by an expert to form an opinion where the

“expert’s testimony was not simply a summarizing of the out-of-court statements of

others” and “consisted primarily of his conclusions” based in part on hearsay).7

In this case, Pablo asks us to review the record and conclude that it is plain that

Ms. Snider simply parroted the out-of-court testimonial statements contained in Ms.

Dick’s DNA report and Ms. Boyd’s serology report. Therefore, according to Pablo, the

government introduced Ms. Dick’s and Ms. Boyd’s testimonial hearsay for its substantive

truth, but failed to provide Pablo an opportunity to cross-examine these declarants as

required by the Confrontation Clause.

We address Ms. Snider’s testimony as it relates to Ms. Dick’s and Ms. Boyd’s

reports separately. In each instance we conclude that the admission of Ms. Snider’s

testimony is not plain error.8

7
The government cites United States v. Davis for the proposition that it is “‘firmly
established that an expert may testify from another person’s notes.’” (Aple. Br. at 27
(quoting Davis, 40 F.3d at 1075).) Davis, however, was not suggesting that an expert
could simply read the notes of another to the jury as if it were her expert opinion; rather,
it was merely restating the well-established principle that an expert may rely on otherwise
inadmissible facts or data as the basis of her opinion. See Davis, 40 F.3d at 1075; see
also United States v. Posey, 647 F.2d 1048, 1051 (10th Cir. 1981) (explaining that Rule
703 makes it “quite reasonable for a chemist to review another chemist’s analysis when
forming an opinion as to the veracity of the latter’s test results”).
8
Pablo also makes passing comments that Ms. Dick’s supervisor who peer-reviewed Ms.
Dick’s DNA report was also not called to testify, but he fails to identify any out-of-court
testimonial statements made by the supervisor that Ms. Snider conveyed to the jury. In
his reply brief, he describes Ms. Dick and Ms. Boyd as having become witnesses against
11
 1. Testimony related to Ms. Dick’s DNA report

Pablo first objects to the admission of Ms. Snider’s testimony as it relates to Ms.

Dick’s DNA analysis and report, arguing that the Confrontation Clause requires that he

have an opportunity to cross-examine Ms. Dick. We need not decide, however, whether

the district court erred in this regard. Pablo cannot succeed on appeal because we find

that his alleged error is not plain, either as a factual or legal matter. For purposes of plain

error review, the term “plain” requires that the error be clear or obvious under current

law. See United States v. Olano, 507 U.S. 725, 734 (1993); see also Johnson v. United

States, 520 U.S. 461, 467 (1997).

As to the factual basis for his alleged error, Pablo argues that Ms. Snider’s

testimony parroted Ms. Dick’s DNA report. Ms. Dick’s DNA report, however, is not a

part of the appellate record. And the absence of that report prevents us from determining

the extent to which, if any, Ms. Snider parroted Ms. Dick’s DNA report. Conversely, we

also cannot discern the extent to which, if any, Ms. Snider is testifying to her own

opinion drawn from that report. Without Ms. Dick’s DNA report, we are left to divine

from Ms. Snider’s testimony whether she was parroting Ms. Dick’s report, but

Ms. Snider’s testimony on its own does not make it clear that Ms. Snider parroted Ms.

Dick’s DNA report. Thus, we cannot characterize Ms. Snider’s testimony as a clear or

obvious parroting of Ms. Dick’s DNA report. See Skyes v. United States, 373 F.2d 607,

Pablo because of Ms. Snider’s testimony, but he makes no such argument with respect to
Ms. Dick’s supervisor. Thus, Pablo has provided no basis for us to find a violation of his
confrontation rights with respect to the government’s decision not to call Ms. Dick’s
supervisor to testify.

12
613 (5th Cir. 1966) (explaining that appellate courts are “not equipped for divination”

and “[t]hat which is not visible cannot be ‘plain.’”); see also United States v. Rose, 587

F.3d 695, 700-01 (5th Cir. 2009) (finding no plain error where supervising lab analyst

relayed to the jury some testimonial hearsay contained in a drug analysis report she did

not perform because there were factual ambiguities regarding the supervisor’s role in, and

personal knowledge of, the testing and report) cert. denied, 130 S. Ct. 1915 (2010).

Pablo attempts to counter the factual ambiguity in the record by emphasizing

portions of Ms. Snider’s testimony where she indicates that DNA analysts write their

reports so that other analysts can read those reports and testify about them. For example,

when asked whether she would “simply be testifying like reading somebody else’s

report,” Ms. Snider responded in the affirmative, explaining that analysts are trained to

write their “report or write [their] notes so somebody can . . . go to testify in court if

[they] can’t go.” (Supp. R. vol. 3 at 177:2-10.) Pablo argues that this makes plain that

Ms. Snider merely read Ms. Dick’s DNA report to the jury. Pablo’s interpretation of this

testimony is reasonable. But Ms. Snider’s testimony in this respect is susceptible to a

different but still reasonable interpretation—namely, that analysts are trained to record

their data and processes in a manner that allows other analysts to review the information

in order to draw an independent judgment about the DNA analysis and to testify to that

independent judgment drawn from others’ reports. Nowhere does Ms. Snider testify that

she is simply parroting Ms. Dick’s DNA report to the jury. To the contrary, her

testimony revealed her own extensive review of the entire test procedure in this case and

she expressed her own expert conclusions. In the course of discussing her review of this

13
record, she does once or twice discuss Ms. Dick’s conclusions as well, but she apparently

does so in the context of explaining some of the data and information she is relying on in

giving her own expert opinion. Thus, Ms. Snider’s testimony fails to make clear or

obvious the alleged factual basis for the asserted error and thus the admission of that

testimony when no confrontation clause objection was raised below is not plain error.

Moreover, as a legal matter, we also do not think it is plain or obvious that

Melendez-Diaz resolves the issue. In Melendez-Diaz, the state trial court “admitted into

evidence affidavits reporting the results of forensic analysis which showed that material

seized by the police and connected to the defendant was cocaine.” 129 S.Ct. at 2530.

The Supreme Court concluded, however, that, under Crawford v. Washington, the

affidavits were testimonial statements of witnesses admitted against the defendant.

Melendez-Diaz, 129 S.Ct. at 2532. And a witness’s testimonial statements are

“inadmissible unless” either “the witness appears at trial, or, if the witness is unavailable,

the defendant had a prior opportunity for cross-examination.” Id. at 2531.

In Melendez-Diaz, then, the affidavits disclosing the results of a forensic analysis

were admitted into evidence. 129 S.Ct. at 2530. That is, the actual out-of-court

testimonial statements were admitted into evidence against the defendant and the

government failed to call the declarants of that testimonial hearsay. In contrast, here, Ms.

Dick’s DNA report was never admitted into evidence.

The degree to which an expert may merely rely upon, and reference during her in-

court expert testimony, the out-of-court testimonial conclusions of another person not

14
called as a witness is a nuanced legal issue without clearly established bright line

parameters, even today with the benefit of Melendez-Diaz.

Therefore, both factually and legally we conclude that the admission of Ms.

Snider’s testimony as it relates to Ms. Dick’s DNA report did not constitute plain error.

2. Testimony related to Ms. Boyd’s serology report

Pablo raises a similar objection to the admission of Ms. Snider’s testimony as it

relates to Ms. Boyd’s serology report, arguing that the Confrontation Clause requires that

he have an opportunity to cross-examine Ms. Boyd. Again, we decline to determine

whether or not the district court erred because Pablo’s alleged error is not plain as a

factual or legal matter for substantially the same reasoning advanced with regard to

Ms. Dick’s report. Further, Pablo has failed to show the alleged error regarding Ms.

Boyd’s report affected his substantial rights.

As with Ms. Dick’s DNA report, we have no clear factual basis for determining if

Ms. Snider merely parroted the contents of Ms. Boyd’s serology report because Ms.

Boyd’s report is not a part of the appellate record, and Ms. Snider’s testimony on its own

does not make it clear that she was merely parroting Ms. Boyd’s serology report. See

Rose, 587 F.3d at 700-01 (finding no plain error because of factual ambiguities in the

record).

We note that the appellate record contains at least some notes signed and stamped

by Ms. Boyd, but these materials do not adequately resolve the factual ambiguity. The

appellate record contains a district court exhibit, Exhibit AA, the first five pages of which

are signed or stamped by Ms. Boyd and the last five pages of which appear to have been

15
prepared by the medical professional that examined L.R.H. after the rape. The district

court did not admit Exhibit AA to the jury; rather, it admitted it as a matter of record

outside the presence of the jury because a dispute had arisen over whether the prosecution

had timely disclosed Exhibit AA to the defendants, particularly the last five pages of the

exhibit. And, after reviewing the record, it appears that the first five pages of Exhibit AA

are simply Benita Boyd’s notes, not the serology report about which Pablo complains.

(See Supp. R. vol. 3 at 332:7-19 (referring to Ms. Boyd’s report and Ms. Dick’s report as

having previously been disclosed to the defendant, but indicating that various notes had

not been disclosed).) Moreover, neither Pablo’s nor the government’s briefs ever cite to

Exhibit AA—Supp. R. vol. 1—as constituting Ms. Boyd’s serology report. Thus, despite

these notes in the record, we still have an inadequate factual basis from which to

determine if Ms. Snider inappropriately parroted Ms. Boyd’s serology report, and thus we

cannot find plain error as a matter of fact.9

Like Ms. Dick’s DNA report, the district court did not admit into evidence Ms.

Boyd’s serology report. Thus, it is not plain from a legal standpoint whether Melendez-

Diaz, which involved the admission into evidence of affidavits containing testimonial

hearsay, would necessarily require the government to call Ms. Boyd to testify since her

report was not admitted into evidence.

9
To the extent Pablo argues that the parroting is self-evident from Ms. Snider’s
testimony, we disagree.

16
 For the foregoing reasons, we conclude that Pablo’s alleged error concerning Ms.

Snider’s testimony as it relates to Ms. Boyd’s serology report is not a plain error.10

II. Government Interference with Pablo’s Witnesses

Pablo next asserts that the prosecution and district court impermissibly interfered

with his right to present a defense by dissuading from testifying two defense witnesses—

Zachary Gordo and Alzado Gordo. He argues that the prosecution raised the specter of

self-incrimination to coerce the witnesses not to testify favorably for Pablo, and the

district court erred by refusing to require the witnesses to testify after each witness

consulted with independent counsel and subsequently invoked their privilege against self-

incrimination. We disagree.

A. Standard of Review

10
Pablo asks that this court stay this appeal until the United States Supreme Court
decides the case of Bullcoming v. New Mexico, No. 09-10876 (U.S. 2010). The Court
recently granted certiorari in that case to consider the following question: “Whether the
Confrontation Clause permits the prosecution to introduce testimonial statements of a
nontestifying forensic analyst through the in-court testimony of a supervisor or other
person who did not perform or observe the laboratory analysis described in the
statements.” Petition for a Writ of Certiorari at *i, Bullcoming, No. 09-10876, 2010 WL
3761875, at *i. We deny the defendant’s motion to stay because we do not believe the
answer to that question will be dispositive of this appeal. Pablo’s appeal comes to us on
plain error review because Pablo did not preserve his Confrontation Clause claim below.
The factual state of the record does not plainly or clearly establish that Ms. Snider did
introduce testimonial statements of a nontestifying forensic analyst for their truth, and
accordingly, Pablo cannot satisfy the Olano test on the record before us regardless of how
the Supreme Court might answer the certified question before it in Bullcoming.

17
 We review de novo a defendant’s claim that the prosecution and district court

deprived him of his constitutional right to present a defense by using undue influence to

dissuade witnesses from testifying. See United States v. Solomon, 399 F.3d 1231, 1239

(10th Cir. 2005); see also United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005).

B. Analysis

An essential ingredient to a fair trial is the defendant’s right to present a defense.

Serrano, 406 F.3d at 1214. The Due Process Clause and the Compulsory Process Clause

work together to ensure a defendant has “the right to present a defense by compelling the

attendance, and presenting the testimony, of his own witnesses[.]” Id. at 1215. The right

to due process “include[s] a right to be heard and to offer testimony.” Id. (quotations

omitted). And the right to compulsory process guarantees the defendant “the right to the

government’s assistance in compelling the attendance of favorable witnesses at trial and

the right to put before a jury evidence that might influence the determination of guilt.”

Id. (quotations omitted).

A criminal defendant’s right to present a defense, however, is not unfettered. Id.

This right may, “in appropriate cases, bow to accommodate other legitimate interests in

the criminal trial process.” Id. (quotation omitted). In this case, Pablo’s right to present a

defense ran up against the right of two witnesses to invoke their Fifth Amendment

privilege against self-incrimination. And we have explained that “a defendant’s right to

present a defense does not include the right to compel a witness to waive his Fifth

Amendment privilege against self incrimination.” Id.

18
 Although a witness may freely invoke his privilege against self incrimination even

at the expense of the defendant’s right to present a defense, “the government cannot

substantially interfere with a defense witness’s decision to testify.” Id. This restriction

on government action applies to both prosecutors and the district court. Id. at 1215-16.

To determine if the government impermissibly interfered with a witness’s decision to

testify, we ask whether the government’s interference was “substantial.” Id. at 1216

(quotations omitted). “Interference is substantial when the government actor actively

discourages a witness from testifying through threats of prosecution, intimidation, or

coercive badgering.” Id. (emphasis added). But “[t]he potential for unconstitutional

coercion by a government actor significantly diminishes . . . if a defendant’s witness

elects not to testify after consulting an independent attorney.” Id. By way of example, in

Serrano, we found no substantial interference where the prosecution merely raised to the

district court a legitimate concern about witnesses incriminating themselves if they

testified and the district court simply expressed this concern to the witnesses and

appointed independent counsel to advise them on that issue. Id. This case is on all fours

with Serrano.

Here, the prosecution did not “actively discourage[]” Pablo’s two witnesses “from

testifying through threats of prosecution.” See id. Instead, the prosecutor merely raised

his concern to the district court that the testimony of these two witnesses could lead to

their prosecution. The prosecutor felt that the likely presence of these two witnesses

before, during, and after the rape gave rise to a risk of self-incrimination that required

him to notify the district court. And the prosecutor did not misrepresent or otherwise

19
overstate his concern but explained that he could not “promise the Court that, depending

on what they said, the United States would not prosecute them.” (R. vol. 3 pt. 1 at

328:10-12.) Nothing in the prosecutor’s colloquy with the district court indicates active

discouragement through the threat of prosecution.

To the extent Pablo is arguing that the prosecutor acted in bad faith by raising the

self-incrimination issue, we find no support in the record for that argument. See Serrano,

406 F.3d at 1212 n.1 (citing United States v. Crawford, 707 F.2d 447, 450 (10th Cir.

1983), for the proposition that “an assistant United States attorney ha[s] an obligation to

disclose the fact that several of the defense witnesses were targets of other investigations”

and further citing United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991), for the

proposition that “‘ethical duties require prosecutors to warn unrepresented witnesses of

the risk that the testimony they are about to give may be used against them’”). L.R.H.

testified that at around the time she was raped, a car matching the description of Isaac’s

gray Ford Focus we also present. Under the circumstances—namely, that Dave Keetso

had been left behind incapacitated and Dave’s cousin had likely left in his own car—we

can infer that the car that appeared before the rape may have been Isaac’s Ford Focus

driven by Zachary and Alzado Gordo. And since Pablo and Gordo left L.R.H. in the

truck after the rape, we can further infer a possibility that they left the scene of the crime

in the Ford Focus with Zachary and Alzado. Thus, these circumstances present a real risk

that Zachary and Alzado may have incriminated themselves if they testified, and we

cannot find the prosecutor raised that concern in bad faith.

20
 The district court also responded appropriately to the self-incrimination concern

raised by the prosecution. The district court engaged in a colloquy with each prospective

witness. The district court did not go beyond informing the prospective witnesses of the

privilege against self-incrimination, inquiring about whether they had conferred with

counsel, and appointing independent counsel for each witness once it learned that neither

had conferred with independent counsel regarding the implications of testifying. Nothing

in the district court’s colloquy with the prospective witnesses reflects any active

discouragement of testimony by the district court.

In addition to the fact that the record reveals no signs of undue coercion by either

the prosecutor or the district court, the fact that each prospective witness received the

advice of independent counsel before invoking the privilege against self-incrimination

“significantly diminishes” the risk that either the prosecutor or district court

unconstitutionally coerced the prospective witnesses not to testify. See Serrano, 406 F.3d

at 1216. The district court questioned the attorneys to ensure each believed his client’s

testimony could lead to self-incrimination, and both attorneys agreed that it could. Only

then did the district court conclude that Pablo could not compel Zachary and Alzado

Gordo to testify because they had properly invoked their privilege against self-

incrimination.

For the foregoing reasons, we conclude that neither the prosecutor nor the district

court deprived Pablo of his constitutional right to present a defense because neither

substantially interfered with Zachary and Alzado Gordo’s decision to testify or not to

21
testify; rather, as in Serrano, both prospective witnesses freely invoked the privilege

against self-incrimination after conferring with independent counsel.11

III. Rule 412 Evidence

Pablo’s final argument on appeal asserts that the district court committed

reversible error by excluding two pieces of evidence under Federal Rule of Evidence 412:

(1) that L.R.H. was seen undressed with two other men on the night of the rape; and (2)

that L.R.H. made sexual advances towards Isaac Gordo—Pablo’s co-defendant—on the

night of the rape. We conclude, however, that the district court did not commit reversible

error.

A district court faces a difficult task when confronted with evidence that falls

within the scope of Rule 412. Rule 412 pits against each other two exceedingly

important values—the need “to safeguard the alleged [sexual assault] victim against the

invasion of privacy, potential embarrassment and sexual stereotyping that is associated

with public disclosure of intimate sexual details,” Fed. R. Evid. 412, cmt. n. 1994

amends., and the need to ensure that criminal defendants receive fair trials. The tension

between these two values makes it particularly difficult to resolve Rule 412 issues, and

we bear that in mind as we address the Rule 412 issues that arose in this case.

11
We note additionally that Pablo made no formal proffer of how Zachary and Alzado
Gordo would have testified if they had not invoked their Fifth Amendment Rights. Thus,
we have no basis in this record even to conclude that Pablo was prejudiced by their
refusal to testify.
22
 A. Standard of Review

We review a district court’s determination regarding the admissibility of evidence

under Rule 412 for an abuse of discretion. See United States v. Ramone, 218 F.3d 1229,

1234 (10th Cir. 2000). To the extent the challenge to the exclusion of evidence proffered

by the defendant is based on a constitutional objection, however, we review the district

court’s ruling excluding that evidence de novo. See id.; see also United States v. Powell,

226 F.3d 1191, 1198 (10th Cir. 2000) (“[W]e review challenges to rulings excluding

evidence proffered by the defense de novo where the objections are based on Sixth

Amendment confrontation rights.”) And to the extent the defendant neglected to raise in

the district court an objection to the exclusion of evidence, we review under the plain

error standard set forth above. See James, 257 F.3d at 1182.

B. Analysis

Federal Rule of Evidence 412 creates special restrictions on the admissibility of

evidence of a victim’s alleged past sexual behavior or alleged sexual predisposition. In

criminal sexual misconduct cases, Rule 412 excludes this type of evidence unless any of

three exceptions apply:

(a) Evidence generally inadmissible.--The following evidence is not
admissible in any civil or criminal proceeding involving alleged sexual
misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.--
(1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:

23
 (A) evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was the
source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional
rights of the defendant.

Fed. R. Evid. 412. The parties in this case dispute whether Pablo’s proffered evidence

qualifies for any of the exceptions contained in Rule 412(b).12

1. Evidence that L.R.H. was partially nude with two other men

12
The government also asserts that we need not reach the merits of the district court’s
Rule 412 rulings because Pablo failed to comply with Rule 412’s notice requirements.
Rule 412(c) requires a party seeking to introduce evidence that falls within Rule 412’s
scope to “file a written motion at least 14 days before trial specifically describing the
evidence and stating the purpose for which it is offered” and to “serve the motion on all
parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian
or representative.” A defendant’s noncompliance with the requirements may be excused,
however, if the district court finds “good cause.” Id. Pablo indeed failed to file the
required written motion giving notice within Rule 412(c)’s time constraints to all parties
and to L.R.H. And Pablo effectively concedes this point, though he dubiously suggests
that the government relieved him of his obligation to comply with Rule 412(c) by
providing its own written notice to the district court that Pablo might introduce some
evidence that would fall within Rule 412’s scope, though it did not specifically identify
that evidence. Pablo also argues, albeit without making his argument clear, that the
district court implicitly made a “good cause” finding excusing his noncompliance
because it acknowledged his noncompliance but nonetheless reached the merits of the
Rule 412 issue. However, even if we were to assume for the sake of argument either that
the government’s filing of a Rule 412(c) motion relieved Pablo of his obligation to
comply with Rule 412(c) or that the district court made an adequate good cause finding
that excused Pablo’s noncompliance, we would reach the same result: Pablo is not
entitled to relief for the district court’s exclusion of evidence under Rule 412. Thus, we
need not resolve these procedural disputes.

24
 In the district court, Pablo proffered that witnesses could testify that, at the dance

that preceded the rape, they observed L.R.H. intoxicated and in state of partial undress in

the presence of two other men. Pablo now argues for the first time that the district court

erred in excluding this evidence under Rule 412 because it falls within Rule

412(b)(1)(A)’s exception to Rule 412(a).13 Rule 412(b)(1)(A) permits a district court to

admit “evidence of specific instances of sexual behavior by the alleged victim offered to

prove that a person other than the accused was the source of semen, injury or other

physical evidence.” Pablo asserts that this evidence could prove that the two other men,

not Pablo, were responsible for L.R.H.’s vaginal injuries consistent with a forcible rape.

He also argues that the evidence would have shown L.R.H.’s state of intoxication and

undermined the reliability of her testimony. Because Pablo concedes that he failed to

raise this argument in the district court, we review his claim for plain error. We find no

error, plain or otherwise.

13
In his reply brief, Pablo includes a passing suggestion, unsupported by any argument,
that this evidence was also admissible because Rule 412(b)(1)(C) applied. As Pablo
neither adequately developed his argument with respect to Rule 412(b)(1)(C) nor
properly raised this argument in his opening brief, we decline to address it. See United
States v. Smith, 606 F.3d 1270, 1284 n.5 (10th Cir. 2010) (explaining that “issues raised
by an appellant for the first time on appeal in a reply brief are generally deemed waived”
(quotations omitted)); United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996)
(explaining that a defendant waives an issue “by failing to make any argument or cite any
authority to support his assertion”).

25
 Pablo’s proffered evidence bears no adequate connection to L.R.H.’s vaginal

injuries. The medical professional that examined L.R.H. after the rape testified that she

had seen vaginal injuries like those suffered by L.R.H. only in cases of forced vaginal

penetration, never in cases of consensual sex. She opined that such injuries would occur

in cases of consensual sex, if ever, only in extreme cases of “pretty violent consensual

sex.” (Supp. R. vol. 3 at 402:18-24.) The evidence Pablo proffered, however, contains

no implication that L.R.H. engaged in intercourse with these other two unidentified men

nor that any such intercourse was not consensual or was otherwise extremely violent. At

most, Pablo describes his proffered evidence as tending to show L.R.H. had engaged in

“a consensual encounter” with these two men, and that would not explain the injuries that

L.R.H. incurred. (Aplt. Br. at 38.) Thus, the district court did not abuse its discretion by

excluding the evidence because this evidence bears, at best, only a speculative and

tenuous relationship to Pablo’s argument that these two men may have caused L.R.H.’s

vaginal injuries.

To the extent Pablo further argues that his proffered evidence should have been

permitted for the limited purpose of demonstrating L.R.H.’s alleged level of intoxication,

we find this argument equally unavailing. Rule 412(a) prohibits the admission of

“[e]vidence offered to prove [the] alleged victim engaged in other sexual behavior” or

“[e]vidence offered to prove [the] alleged victim’s sexual predisposition.” And the

district court had legitimate reasons to perceive that Pablo sought to introduce this

evidence for these impermissible purposes, arguing apparently that her intoxication

enhanced her predisposition toward casual sex. Thus, we cannot conclude the district

26
court abused its discretion by excluding the proffered evidence, particularly when the

defendant had (and used) other means to prove L.R.H.’s alleged level of intoxication.

2. Evidence that L.R.H. allegedly made sexual advances towards Isaac
Gordo

Pablo also argues that the district court erred in excluding proffered evidence that,

on the night of the rape, L.R.H. made sexual advances towards his co-defendant, Isaac

Gordo—namely, caressing his leg and penis through his pants and trying to kiss him. As

noted previously, the timing of these alleged sexual advances is not made clear by the

two proffers advanced by Isaac’s counsel.14 Under either proffer, however, Isaac

intended to testify that L.R.H made these alleged sexual advances a significant period of

time before the rape occurred, in a different car than where the rape occurred, and in a

different location than where the rape occurred. And we need not definitively resolve the

inconsistencies in these two proffers because we would reach the same result irrespective

of which proffer more accurately represents Isaac’s proposed testimony.

14
Isaac’s counsel made two proffers with respect to this evidence. One proffer indicates
that the alleged sexual advances were made in the backseat of the Chevy Cavalier as
Dave Keetso drove it to pick up his truck so that he could pull Isaac’s Ford Focus from
the ditch. Another proffer, however, occurred during Isaac’s testimony, and it indicates
that the alleged sexual advances occurred even earlier. Contrary to Dave Keetso’s
testimony that Isaac only entered his Cavalier when they went to pick up Dave’s truck,
Isaac testified that he had jumped into the backseat of Dave’s Cavalier earlier that night
while they were still driving along the back roads before Isaac’s car got stuck in a ditch.
The timing and content of this second proffer suggest that Isaac sought to testify that
L.R.H. made the alleged sexual advances in the back of the Cavalier at this point while
they were still cruising around on back roads.

27
 On appeal, Pablo asserts that the evidence of these earlier sexual advances falls

within the Rule 412(b)(1)(C)’s exception to Rule 412’s general rule of exclusion because

the inability to present this evidence deprived him of his constitutional right to present a

defense.15 He explains that Pablo was accused of raping L.R.H. only a short time after

Isaac raped her. Consequently, he argues that Pablo necessarily had first to prove L.R.H.

consented to sex with Isaac in order to prove that she also consented to sex with him;

otherwise, his consent defense could not have succeeded because no rational jury would

believe that a victim would consent to sex with a man just moments after being raped by

that man’s cousin. Pablo, however, failed to raise a Rule 412(b)(1)(C) argument with

respect to this evidence in the district court.16 Therefore, we review Pablo’s alleged error

15
In his opening brief, Pablo asserted a belief that Isaac should have been allowed to
introduce this evidence under Rule 412(b)(1)(B) because he was offering it to prove
L.R.H. consented to sex with him. But with respect to his own argument for why this
evidence should have been admitted, Pablo’s opening brief argues only that the district
court’s failure to admit the evidence when Isaac sought to introduce it deprived him of
his constitutional right to present a defense, thereby running afoul of Rule 412(b)(1)(C).
In his reply brief, however, Pablo raises for the first time two arguments for why we
should find error under Rule 412(b)(1)(B): (1) that because Isaac could raise an arguable
claim that the evidence should have been admitted under Rule 412(b)(1)(B), Pablo should
be able to raise that error on appeal as well because they were tried as codefendants; and
(2) that the term “accused” in Rule 412(b)(1)(B) covers him and Issac and allows him to
raise his own Rule 412(b)(1)(B) argument because he and Issac were codefendants
accused of raping L.R.H. within a short period of one another and they were jointly
relying on a consent defense. Because Pablo failed to raise these arguments in his
opening brief and failed to cite any relevant authority to support his arguments (though he
did note that the Tenth Circuit has not addressed his second argument), we treat Pablo as
having waived these arguments. See Smith, 606 F.3d at 1284 n.5; Hardwell, 80 F.3d at
1492.
16
In his untimely Rule 412(c) motion, Pablo made a general assertion that he would
introduce evidence of consent and further asserted that his right to present evidence of
consent “falls squarely within [his] constitutionally-guaranteed rights to mount a
28
under a plain error standard of review. Because we conclude that Pablo failed to satisfy

the third prong of plain error review, we need not address the other Olano prongs,

although we believe Pablo would likely fail on those prongs as well.

In order to satisfy the third prong of plain error review— that the error affects

substantial rights—Pablo must show a "reasonable probability" that but for the exclusion

of the evidence the jury would not have convicted him. United States v. Gonzalez-

Huerta, 403 F.3d 727, 732-33 (10th Cir. 2005) (en banc) (quotation omitted). Pablo has

failed to make this showing. The district court prohibited Isaac from testifying that

defense.” (Supp. R. vol. 2 at 15.) But this motion failed to identify any specific piece of
evidence Pablo intended to introduce, much less the evidence related to L.R.H.’s alleged
sexual advances towards Issac. In fact, Pablo appears to have used this motion simply to
notify the district court that he would testify that, at the time of the rape, L.R.H. initiated
the sexual contact and consented to intercourse. He does not appear to have been
attempting to notify the district court of any evidence of prior sexual contacts between
L.R.H and him or L.R.H. and Issac.

Pablo and Isaac also jointly filed an additional Rule 412(c) motion that did
identify some specific Rule 412 evidence they intended to offer. However, none of that
proffered evidence related to L.R.H.’s alleged groping of Gordo in the back of a car prior
to the rape.

The only time constitutional rights were ever mentioned in the context of Isaac’s
ability to testify about L.R.H.’s alleged sexual advances in the back of a car prior to the
rape occurred when counsel for Pablo’s codefendant made a passing comment that
exclusion of this evidence “almost” seems like it implicates Isaac’s “due process rights.”
(R. vol. 3 pt. 1 at 389.) Isaac’s counsel never made any reference to Pablo’s
constitutional rights. And Pablo’s counsel never did so either, nor did he give any
indication that he was adopting Isaac’s objection as his own. In fact, during the colloquy
addressing the admissibility of this evidence, Pablo never raised any argument, much less
one related to his constitutional right to present a defense. Thus, Pablo failed to put the
district court on notice of his Rule 412(b)(1)(C) argument. Cf. Fortier v. Dona Anna
Plaza Partners, 747 F.2d 1324, 1331 (10th Cir. 1984) (refusing to treat one defendant’s
objection as an objection for another defendant where the objection was clearly not made
on behalf of the other defendant).

29
L.R.H. made sexual advances towards him. These alleged sexual advances, however,

occurred some time before the alleged rape and in a different location from where the

alleged rape occurred, which undermines the evidence’s probative value for consent.

Moreover, Isaac was able to testify that L.R.H.’s boyfriend seemed jealous of him

because L.R.H. had been speaking with him at the dance. And the district court allowed

both Isaac and Pablo to testify to other facts tending to show she consented to sex. Yet,

the jury disbelieved the defendants’ testimony in this regard. Thus, we discern little

likelihood that a jury that discredited the defendants’ testimony on consent would change

its evaluation of the defendants’ credibility because of Isaac’s self-serving testimony of

earlier alleged sexual advances in a different location, particularly given the presence of

other inconsistencies and gaps in the defendants’ testimony.

Moreover, even if this evidence would convince a jury that L.R.H. consented to

sex with Isaac, it would not have a reasonable probability of convincing the jury that

L.R.H. consented to sex with Pablo; in fact, it would prove the opposite. L.R.H. suffered

severe vaginal injuries consistent with forcible vaginal penetration. The evidence

adduced at trial indicates that these injuries resulted from either Gordo, Pablo, or both.

And Pablo had sex with L.R.H. after Gordo. Thus, if the jury believed that L.R.H.

consented to sex with Gordo, the jury would be left with conclusion that Pablo caused

L.R.H.’s vaginal injuries in the course of rape.

Accordingly, we conclude that Pablo has failed to satisfy the third prong of plain

error review.

30
 CONCLUSION

For the reasons discussed above, we conclude that none of the claims raised by

Pablo on appeal entitle him to relief from his conviction. Therefore, we affirm his

conviction.

AFFIRMED.

31
No. 09-2091, United States v. Pablo

BRISCOE, Chief Judge, concurring:

I concur but write separately to outline why, in my view, there is no merit

to Pablo’s claim that the admission of Snider’s testimony violated his

confrontation rights. The majority generously assumes that Dick’s DNA report

and Boyd’s serology report, neither of which were proffered or admitted at trial

nor included in the record on appeal, contained testimonial statements. I would

not make that assumption.

“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.’” Crawford v. Washington, 541 U.S. 36, 42 (2004).

“A witness’s testimony against a defendant is thus inadmissible unless the

witness appears at trial or, if the witness is unavailable, the defendant had a prior

opportunity for cross-examination.” Melendez-Diaz v. Massachusetts, 129 S.Ct.

2527, 2531 (2009).

The Supreme Court has “described the class of testimonial statements

covered by the Confrontation Clause as follows,” id. at 2531:

Various formulations of this core class of testimonial statements
exist: ex parte in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be
used prosecutorially; extrajudicial statements . . . contained in
1
 formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions; statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52.

In Melendez-Diaz, the Court held that this “core class of testimonial

statements” encompassed three “certificates of analysis” that were admitted

against the defendant in that case. Those certificates “show[ed] the results of . . .

forensic analysis performed on . . . substances” seized from the defendant and his

codefendants. 129 S.Ct. at 2531. “The certificates were sworn to before a notary

public by analysts at the State Laboratory Institute of the Massachusetts

Department of Public Health, as required under Massachusetts law.” Id. The

Court noted that “[t]he documents . . . , while denominated by Massachusetts law

‘certificates,’ [we]re quite plainly affidavits: ‘declaration[s] of facts written down

and sworn to by the declarant before an officer authorized to administer oaths.’”

Id. at 2532 (quoting Black’s Law Dictionary 62 (8th ed. 2004)). The Court

further concluded that “[t]hey [we]re incontrovertibly a solemn declaration or

affirmation made for the purpose of establishing or proving some fact,”

specifically “that the substance found in the possession of [defendant] Melendez-

Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise

testimony the analysts would be expected to provide if called at trial.” Id.

(internal quotation marks and citation omitted). In other words, the Court

2
concluded, “[t]he ‘certificates’ [we]re functionally identical to live, in-court

testimony, doing ‘precisely what a witness does on direct examination.’” Id.

(quoting Davis v. Washington, 547 U.S. 813, 830 (2006)). Lastly, the Court

noted that “under Massachusetts law the sole purpose of the affidavits was to

provide ‘prima facie evidence of the composition, quality, and the net weight’ of

the analyzed substance,” id. (italics in original; quoting Mass. Gen. Laws, ch.

111, § 13), and thus “the analysts [presumably] were aware of the affidavits’

evidentiary purpose,” id. “In short,” the Court held, “the analysts’ affidavits

were testimonial statements, and the analysts were ‘witnesses’ for purposes of the

Sixth Amendment.” Id.

Pablo, relying on Melendez-Diaz, asserts that the DNA analysis report

prepared by Dick was a “testimonial statement” and that reference to the results

of the report at trial, combined with the unavailability of Dick as a witness,

resulted in a violation of his Sixth Amendment rights. Pablo, however, is

mistaken. To begin with, there is no indication in the record that Dick’s written

report, which was not included in the record on appeal and thus is unavailable to

us, was intended by Dick, her superiors, or the prosecution to be the functional

equivalent of live, in-court testimony. In particular, there is no indication the

report was sworn to by Dick before an officer authorized to administer oaths.

Further, Snider testified that, under the laboratory’s protocols, reports were

prepared in such a manner that they could be testified to by any criminalist from

3
the laboratory. Thus, Dick’s report does not fall within the Supreme Court’s

definition of “testimonial statements.” Instead, Dick’s report appears to be “in

the nature of a business record,” United States v. De La Cruz, 514 F.3d 121, 133

(1st Cir. 2008) (holding that autopsy reports are business records), and thus was

not testimonial in nature, Crawford, 541 U.S. at 56.

Moreover, unlike the situation in Melendez-Diaz, the contents of the

document at issue were not presented by themselves as the functional equivalent

of live testimony. Indeed, the report was not admitted as an exhibit at trial.

Instead, the contents of the report were discussed by a live witness subject to

cross-examination. Although Pablo complains that this witness, Snider, did not

prepare the report, Snider testified at trial that the laboratory’s protocols required

criminalists, including Dick, “to write a report as if somebody else [wa]s going to

testify to it.” ROA, Vol. 3, Part 1 at 260. Snider further testified, and the district

court expressly found, that the laboratory’s protocols for the handling and testing

of the evidence, which were testified to in detail by Snider, were followed by

Boyd and Dick. Snider also testified, based upon her review of Dick’s casework,

that Dick’s method of note-taking was very similar to that utilized by Snider, and

Snider opined that Dick generally “d[id] a very excellent job.” Id. at 281. Snider

also, on cross-examination by both Pablo and Gordo, explained various aspects of

Dick’s reports, including the procedures utilized in performing the DNA analysis

and the statistical aspects of the report. Thus, in sum, Pablo was afforded the

4
opportunity to cross-examine the witness who testified as to the results of the

laboratory’s DNA testing, and he is wrong in suggesting that Snider “could not

explain how the results were arrived at, whether the person who reached the

conclusions was qualified to do so, or whether proper procedures were followed

to avoid contaminating the evidence.” Aplt. Br. at 24.

Finally, and relatedly, both the Federal Rules of Evidence and our case law

indicate that it was entirely proper for Snider to testify based on the contents of

Dick’s report. Federal Rule of Evidence 703 permits an expert witness to form

and then testify as to an opinion based on reports or data that are otherwise

inadmissible under the Federal Rules of Evidence, provided the reports or data

are “of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject.” Under longstanding Tenth Circuit law

applying Rule 703, “[i]t is . . . firmly established that an expert may testify from

another person’s notes,” particularly those of a lab technician. United States v.

Davis, 40 F.3d 1069, 1075 (10th Cir. 1994). In other words, as the Seventh

Circuit recently explained, “‘the Sixth Amendment does not demand that a

chemist or other testifying expert have done the lab work himself.’” United

States v. Turner, 591 F.3d 928, 933 (7th Cir. 2010) (quoting United States v.

Moon, 512 F.3d 359, 362 (7th Cir. 2008)).

5
 For these reasons, I conclude there was no error on the part of the district

court, let alone plain error, in admitting Snider’s testimony.1

1
The same analysis and conclusions apply to the extent Pablo is challenging
Snider’s testimony regarding the contents of Boyd’s serology report. Boyd’s
report, like Dick’s, was neither proffered or admitted at trial nor included in the
record on appeal.

6