United States v. Rosales

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1732

UNITED STATES,

Appellee,

v.

ROBERTO ROSALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Lydia Lizarribar-Masini for appellant.

Miguel A. Pereira, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

March 31, 1994

BOWNES, Senior Circuit Judge. Defendant-appellant
BOWNES, Senior Circuit Judge.

Roberto Rosales appeals his conviction for abusive sexual

contact in violation of 18 U.S.C. 2244(a)(1).1 He argues

that the district court abused its discretion by admitting

explanatory expert witness testimony, and that remarks

contained in the prosecutor's closing argument deprived him

of a fair trial. In addition, defendant challenges his

sentence on the ground that the district court's upward

departure from the Sentencing Guidelines was unreasonable.

We affirm defendant's conviction, but vacate his sentence and

remand the case for resentencing.

I.

BACKGROUND

Defendant is a former elementary school teacher at

Antilles Elementary School, located at Fort Buchanan, Puerto

Rico. The school is administered by the United States Navy.

1. Section 2244(a)(1) provides in pertinent part:

Whoever, in the special maritime and
territorial jurisdiction of the United
States . . . knowingly engages in or
causes sexual contact with or by another
person, if to do so would violate . . .
(1) section 2241 of the title had the
sexual contact been a sexual act, shall
be fined under this title, imprisoned not
more than ten years, or both.

18 U.S.C. 2244(a)(1). Section 2241(c) makes it a federal
crime to engage, or attempt to engage, in a sexual act with a
person under the age of twelve, in the territorial
jurisdiction of the United States.

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Complaints of inappropriate touching led to an investigation

of defendant, which resulted in an indictment charging him

with six counts of abusive sexual contact involving three

minor victims.2 The charges arose from allegations that

defendant had touched, kissed and rubbed against three of his

former students.

Each victim was a student of defendant for one

school year, and all three testified that numerous incidents

of sexual contact occurred throughout their time in the third

grade. The government also presented the expert testimony of

Dr. Nancy Slicner, a child psychologist, who testified about

the general behavioral characteristics exhibited by victims

of child sexual abuse.

The jury found defendant guilty as charged. The

trial judge sentenced defendant to 120 months imprisonment on

each count, with the sentences to run concurrently. This

appeal ensued.

II.

DISCUSSION

A. Expert Testimony

Defendant first argues that the district court

erroneously admitted the expert testimony of Dr. Slicner, a

child psychologist who testified for the government. More

2. Although defendant was originally charged in a six count
indictment, two counts were voluntarily dismissed by the
government prior to trial.

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precisely, defendant argues that the expert testimony should

have been excluded because it improperly bolstered the

testimony of the minor victims, and therefore its probative

value was outweighed by its prejudicial effect. At trial,

however, no objection was made to the admissibility of Dr.

Slicner's testimony. Therefore, any error in the admission

of the evidence was not preserved for appeal. See United

States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992),

cert. denied, 113 S. Ct. 2935 (1993); United States v.

Serrano, 870 F.2d 1, 10 n.9 (1st Cir. 1989); see also Fed. R.

Evid. 103(a)(1). Our standard of review under the

circumstances is "plain error," see United States v.

Figueroa, 976 F.2d 1446, 1453 (1st Cir. 1992), cert. denied,

113 S. Ct. 1346 (1993), and we will reverse only if the error

"`seriously affect[ed] the fairness, integrity or public

reputation of [the] judicial proceeding[].'" United States

v. Geer, 923 F.2d 892, 896 (1st Cir. 1991) (quoting United

States v. Young, 470 U.S. 1, 15 (1985) (internal quotation

marks and citation omitted)); see United States v. Olivio-

Infante, 938 F.2d 1406, 1411 (1st Cir. 1991) (under "plain

error" review we will reverse only where a miscarriage of

justice has occurred).

Defendant focuses his argument on Dr. Slicner's

testimony that the way in which the minor victims discussed

the incidents of sexual abuse with her was consistent with

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the manner generally exhibited by children who have been

sexually abused or molested. Dr. Slicner explained that

children generally "tend to be reluctant, they tend to be

embarrassed, uncomfortable, ashamed of what happened.

They're very uncomfortable giving details. I see a lot of

that. And I saw that in these children."

Defendant relies on the Ninth Circuit's decision in

United States v. Binder, 769 F.2d 595 (9th Cir. 1985), where

the court held that the district court erroneously admitted

expert testimony addressed directly to the credibility of the

abused children. The court found reversible error because,

"[t]he testimony of the experts . . . was
not limited to references to
psychological literature or experience or
to a discussion of a class of victims
generally. Rather the experts testified
that these particular children in this
particular case could be believed. The
jury in effect was impermissibly being
asked to accept an expert's determination
that these particular witnesses were
truthful."

United States v. Antone, 981 F.2d 1059, 1062 (9th Cir. 1992)

(quoting Binder, 769 F.2d at 602). According to the court,

the effect of the experts' testimony was to "bolster the

children's story and to usurp the jury's fact-finding

function." Id. In Binder, however, the court conducted a

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"harmless error" review, a standard far less demanding than

that of "plain error."3

Although trial judges are afforded significant

leeway in determining whether otherwise admissible evidence

is unfairly prejudicial under Fed. R. Evid. 403, see United

States v. Spinosa, 982 F.2d 620, 628-29 (1st Cir. 1992), we

have recognized that "proffered expert testimony [c]ould

create a substantial danger of undue prejudice . . . because

of its aura of special reliability and trustworthiness."

United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)

(collecting cases); accord United States v. Boney, 977 F.2d

624, 631 (D.C. Cir. 1992).

We agree with defendant that Dr. Slicner's

testimony sent an implicit message to the jury that the

children had testified truthfully, and this might therefore

have interfered with the jury's function as the sole assessor

of witness credibility. But, even assuming (without

deciding) that the district court improperly calibrated its

scales in balancing the probative value of this testimony

3. Were we reviewing the objectionable portion of Dr.
Slicner's testimony for harmless error, we would have to
decide whether "it can be said `with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not
substantially swayed by the error.'" United States v. Ladd,

885 F.2d 954, 957 (1st Cir. 1989) (quoting Kotteakos v.

United States, 328 U.S. 750 (1946)).

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against its prejudice to defendant,4 any error was not

"plain."

Our conclusion is based on two factors. First,

defendant offered the testimony of its own expert, a child

psychiatrist, who sought to undermine the credibility of Dr.

Slicner. According to defendant's expert, the interviews

conducted by Dr. Slicner of the children were too short to

allow Dr. Slicner to assess their stories accurately. In

addition, defendant's expert stated that the children's trial

testimony, which she listened to attentively, was not

consistent with testimony that one would expect from victims

of child abuse. Second, the district court instructed the

jury as follows:

During the trial you heard the
testimony . . . of Dr. Nancy Slicner who
was presented by the government . . .
[a]nd we also heard the testimony of Dr.
Martinez Lugo presented by the defendant
. . . . If scientific or technical or
other specialized knowledge may assist[]
the juror in understand[ing] the evidence
or determining facts in issue, a witness
qualified as an expert . . . may testify
before the jury and state an opinion
concerning such matters. Now merely

because an expert witness has expressed

an opinion does not mean, however, that

you as jurors must accept this opinion.

4. Under prevailing law, relevant evidence, such as Dr.
Slicner's testimony, is admissible unless its probative value
is "substantially outweighed" by the risk of unfair
prejudice, confusion, or waste of time. United States v.

Argencourt, 996 F.2d 1300, 1305 (1st Cir 1993); Fed. R. Evid.

403.

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The same as with any other witness.
It is up to you to decide whether you

believe the testimony of the expert and

choose to rely upon it.

Trial Transcript, Vol. XIV at pp. 864-65 (emphasis added).

Not only was the jury presented with expert

testimony directly contradicting the objectionable testimony

offered by Dr. Slicner, but, the court expressly instructed

the jurors that they were free to reject the opinions offered

by the experts. Under the circumstances, we are not

persuaded that Dr. Slicner's testimony was so prejudicial to

defendant "as to undermine the fundamental fairness of the

trial and contribute to a miscarriage of justice." Geer, 923

F.2d at 897 (internal quotation marks and citation omitted).

B. Improper Argument

Defendant next contends that comments by the

prosecutor to the jury during closing arguments deprived him

of a fair trial. According to defendant, the prosecutor

impermissibly vouched for the credibility of the government's

witnesses in his response to defense counsel's argument that

the FBI had fabricated evidence. The prosecutor stated:

Then they are also implying here, the
defense is implying that there is some
kind of conspiracy, that the FBI wanted
to fabricate a case against Mr. Rosales,
a school teacher at Antilles Elementary
School. Like the FBI would have a
special interest in this man. But for
you to believe that story, you [w]ould
also have to believe that the United
States, Mr. Pereira [the other AUSA] and
myself are part of that conspiracy. And

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that we would blend [sic] ourselves to do
something such as improper and unethical
conduct.

Defense counsel objected to this remark. The court sustained

the objection, and warned the prosecutor that "[t]he evidence

has to do with the participation of the FBI agents [in

gathering evidence]," and that he should not go beyond the

evidence. No curative instruction was requested by the

defense, and none was given. Moreover, defendant did not

move for a mistrial.

When a prosecutor places the credibility of counsel

at issue, the advantage lies solidly with the government, and

thus, prosecutors are prohibited from doing so. See United

States v. Cresta, 825 F.2d 538, 555 (1st Cir. 1987), cert.

denied, 486 U.S. 1042 (1988); see also United States v.

Nickens, 955 F.2d 112, 121 (1st Cir.) (prosecutor may not

express personal assurances about conclusions to be drawn

from the evidence), cert. denied, 113 S. Ct. 108 (1992);

United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st

Cir. 1989) (same); United States v. Mejia-Lozano, 829 F.2d

268, 273 (1st Cir. 1987) (same). Because this is precisely

what the prosecutor in this case did, there is no doubt that

his argument was improper. And, the government concedes

this. Nevertheless, a new trial is not warranted.

The question is whether the prosecutor's argument

was sufficiently prejudicial to warrant a new trial under the

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circumstances. This requires that we engage in the

functional equivalent of the familiar "harmless error"

analysis. See United States v. Brown, 938 F.2d 1482, 1489

(1st Cir.), cert. denied, 112 S. Ct. 611 (1991); Rodriguez-

Estrada, 877 F.2d at 159; Fed. R. Crim. P. 52(a). In

determining whether the prosecutor's remark was harmless, "we

consider a range of factors, starting with the nature of the

prosecutor's (mis)conduct and ending with the unavoidable

bottom line: whether we deem it likely, or not, that any

prejudice affected the outcome of the case." Rodriguez-

Estrada, 877 F.2d at 159. In conducting this analysis, we

evaluate the prosecutor's comments in the context of the

trial as a whole, not in isolation. See id.; see also

Nickens, 955 F.2d at 121. While we have no doubt that the

prosecutor's argument was wholly inappropriate, which is

conceded by the government on appeal, reversal is not

warranted for the following reasons.

First, the prosecutor did not repeatedly place his

credibility in issue, or extend his argument beyond the scope

of the evidence. His improper statement was an isolated one

and, as such, was less likely to impact the outcome of the

case. See Brown, 938 F.2d at 1489; Mejia-Lozano, 829 F.2d at

274. Second, the issue of the credibility of the

government's witnesses, particularly the children, was fully

developed at trial, and the jury was instructed that they

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alone were charged with judging the credibility of each

witness. This diminishes any likelihood that the jury was

swayed by the prosecutor's "vouching." See Cresta, 825 F.2d

at 556.

Next, although the court did not explicitly

instruct the jury to disregard the prosecutor's improper

remark, it sustained defendant's objection and immediately

warned the prosecutor (in the presence of the jury) that

defendant's allegations concerned misconduct only by the FBI,

and that his argument should be limited to the evidence.

Finally, the trial court repeatedly instructed the

jury as to the proper role of argument in the case. Prior to

counsel's opening statements, again before their summations,

and once again in its charge, the court explained to the jury

that the attorney's arguments were not evidence, and that

only the testimony of the witnesses and admitted documents

were evidence. See, e.g., Brown, 938 F.2d at 1489

(instruction that arguments of counsel are not evidence can

remove prejudicial taint of improper argument); United States

v. de Leon Davis, 914 F.2d 340, 345 (1st Cir. 1990) (same).

Although there are circumstances where such an instruction

may not be sufficient given the nature of the prosecutor's

argument, see Arrieta-Agressot v. United States, 3 F.3d 525,

529 (1st Cir. 1993) (court's instruction that arguments of

counsel are not evidence not enough to counteract prejudice

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from emotionally charged summation where "the danger was not

so much that the jury would consider the prosecutor's remarks

to be `evidence.' Rather, the threat was that the

prosecutor's remarks would excite the jury, invite a partisan

response, and distract its attention from [the merits of the

case]."), such circumstances are not present here.

We have reviewed the transcripts of the trial

testimony in this case, in addition to the briefs, and are

convinced that the objectionable remark, viewed in context,

and in light of the court's instructions to the jury, did not

affect the outcome of the trial. Defendant's trial lasted

for ten days, and each party was afforded one hour in which

to deliver its summation. It is highly unlikely that the

jury's verdict could have been the result of this brief

remark by the prosecutor. We conclude that the verdict was

based upon the testimony, and the jury's belief that the

government's witnesses were credible.

Defendant also argues that the prosecutor, in other

portions of his summation, improperly vouched for the

credibility of government witnesses and commented on facts

not in evidence. We have carefully reviewed the prosecutor's

closing argument and rebuttal, and find that these statements

were not improper. The allegedly improper statements are

little more than words and phrases taken out of context from

the prosecutor's argument. When the allegedly improper

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statements are read in full and in context, we can find

nothing objectionable about them. Furthermore, because no

contemporaneous objection was made, our review is only for

plain error. Arrieta-Agressot, 3 F.3d at 528; United States

v. Smith, 982 F.2d 681, 682 (1st Cir. 1993); Nickens, 955

F.2d at 121. Under the "plain error" standard, we could not

order a new trial based on these remarks. See United States

v. Soto-Alvarez, 958 F.2d 473, 477 (1st Cir.) (improper

argument constitutes plain error only if it "`undermine[s]

the fundamental fairness of the trial and contribute[s] to a

miscarriage of justice.'" (quoting United States v. Soto-

Alvarez, 876 F.2d 209, 233 (1st Cir. 1989), cert. denied, 493

U.S. 1030 (1990))), cert. denied, 113 S. Ct. 221 (1992).

C. The Upward Departure

In sentencing defendant, the district court

calculated a Sentencing Guidelines offense level of 22 as

follows: the "abusive sexual contact" base offense level of

ten, U.S.S.G 2A3.4(a)(3); plus six levels because none of

the victims had attained the age of twelve, id.

2A3.4(b)(1); plus four levels as a multiple count adjustment,

id. 3D1.4; plus two levels based on defendant's abuse of a

position of trust in a manner that facilitated commission of

the offense, id. 3B1.3. The court then placed the

defendant into Criminal History Category I. These

calculations produced a Guideline Sentence range of forty-one

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to fifty-one months imprisonment. Id. ch. 5, part A

(Sentencing Table). The court then departed upward pursuant

to 5K2.0 of the Sentencing Guidelines, effectively

increasing defendant's offense level to 31, and imposed a

prison term of 120 months.5 Defendant contends that the

degree of the upward departure was unreasonable. 18 U.S.C.

3742(e)(3).

In United States v. Rivera, 994 F.2d 942 (1st Cir.

1993), we analyzed the departure powers of sentencing courts

under the Guidelines, and recognized that cases which fall

outside of the "heartland," i.e., the "set of typical cases

embodying the conduct that each guideline describes," are

candidates for departure. Id. at 947.

At defendant's sentencing the district court found,

there are aggravating factors in this
case. . . . [T]hat defendant Rosales
repeatedly engaged in similar criminal
behavior as . . . represented by the
counts of the convictions with the minors
named in the indictment, conduct for
which he was not charged. The evidence

5. Section 5K2.0 provides that the sentencing court may
impose a sentence outside of the range established by the
applicable guideline if the court finds

that there exists an aggravating or
mitigating circumstance of a kind, or to
a degree, not adequately taken into
consideration by the Sentencing
Commission in formulating the Guidelines
that should result in a sentence
different from that described.

U.S.S.G. 5K2.0, p.s. (quoting 18 U.S.C. 3553(b)).

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at trial showed that defendant engaged in
uncharged incidents of abusive sexual
contact with minor RG on five occasions,
with minor MQ on several occasions and
minor VT almost on a daily basis during
one school year.

The district court concluded that, "based on multiplicity of

incidents of abusive sexual contact that the defendant

Roberto Rosales engaged [in] with minors named in the

indictment, the Court departs to an offense level of thirty-

one."

The court went on to state that the Guidelines

range for offense level thirty-one, where the defendant had a

criminal history rating of I, was 120-135 months. This was

incorrect. The correct range is 108-135 months. It is

unclear whether the court sentenced defendant to 120 months

on each count because (1) it meant to sentence defendant at

the low end of the incorrect range, or (2) because it

intended to impose the statutory maximum for each count.

Thus, defendant might very well have been prejudiced by the

court's failure to identify the guideline range the court had

in mind. But, because we vacate defendant's sentence on

other grounds, see infra pp. 15-18, we need not pursue this

line of thought.

We review a sentencing court's decision to depart

by examining "(1) whether the reasons the court gave for

departing are the sort that might permit a departure in an

appropriate case; (2) whether the record supports a finding

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of facts demonstrating the existence of such reasons; and (3)

whether, given the reasons, the degree of departure [from

about four years to ten] is reasonable." United States v.

Mendez-Colon, No. 93-1346, slip op. at 3 (1st Cir. Jan. 19,

1994); see United States v. Diaz-Villafane, 874 F.2d 43, 49

(1st Cir.), cert. denied, 493 U.S. 862 (1989); Rivera, 994

F.2d at 950.

With respect to the first prong of our analysis, we

have recognized that "[s]ome district court decisions that a

particular case is unusual enough to warrant departure

reflect sentencing experience of a sort one typically finds

in district, not appellate, courts." United States v. Doe,

No. 92-2331, slip op. at 5 (1st Cir. Mar. 18, 1994). Thus,

we review the district court's determination that a case is

unusual, and therefore warrants departure, "with full

awareness of, and respect for, the trier's superior feel for

the case." United States v. Legarda, No. 93-1448, slip op.

at 10 (1st Cir. Mar. 3, 1994) (quoting Rivera, 994 F.2d at

952 (citations and internal quotation marks omitted)). On

the other hand, "where departure decisions reflect a

determination of the purpose of, or an interpretation of the

language in, a guideline or statute," plenary review is

appropriate. Doe, slip op. at 5. In the present case,

defendant argues merely that, because the indictment covers

the entire time period during which defendant's multiple acts

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allegedly occurred, an upward departure cannot be based upon

these acts. This contention is without merit. Under this

indictment, defendant's offense level would remain the same

regardless of whether he engaged in four or four hundred acts

of misconduct. The pivotal question is whether the

persistent and repetitive nature of defendant's conduct,

charged or uncharged, is an appropriate ground for departure.

In other words, is this case "unusual" relative to the garden

variety sex offender case? Here, defendant has not

challenged the district court's determination that his case

was outside of the "heartland," and therefore worthy of an

upward departure. Given the respect that we extend to a

sentencing court's determination as to whether a given

circumstance makes

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a case "unusual," see Doe, slip op. at 5; Rivera, 994 F.2d at

952, we do not believe that the district court erred in its

decision to depart from the Guidelines.

As for the second part of our review, the record

provides an ample basis for the district court's conclusion

that defendant engaged in multiple acts of misconduct over a

prolonged period of time. The frequent and continuous nature

of defendant's conduct is set out in the Pre-Sentence Report.

Because no objection was lodged with respect to the PSR's

contents, these facts could be accepted as true and accurate.

See United States v. Ramirez, 11 F.3d 10, 14 (1st Cir. 1993);

United States v. Citro, 938 F.2d 1431, 1445 (1st Cir. 1991),

cert. denied, 112 S. Ct. 902 (1992) and 112 S. Ct. 1997

(1992). Thus, the district court's finding of circumstances

supporting a departure was not clearly erroneous. See United

States v. Mendez-Colon, No. 93-1346, slip op. at 5 (1st Cir.

Jan. 19, 1994).

Finally, we must determine whether the extent of

the court's upward departure was reasonable. See Doe, slip

op. at 20; 18 U.S.C. 3742(e)(3) (length of sentence imposed

must be reviewed for its "reasonableness"). In examining the

reasonableness of a departure, we must consider, inter alia,

"the reasons for the imposition of the particular sentence,

as

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stated by the district court . . . ." 18 U.S.C.

3742(e)(3)(B).

Here the district court articulated the grounds for

its upward departure, and then departed upward by nine

offense levels, without explaining its choice of this

particular figure. Although sentencing courts have

substantial "leeway" with respect to the "degree" of a

departure, see Doe, slip op. at 20-21, Rivera, 994 F.2d at

950, this freedom does not relieve a sentencing court from

explaining its ultimate decision of how far to depart. See

18 U.S.C. 3553(c)(2) (sentencing court must state "specific

reason[s]" for imposing a "particular sentence" outside of

the guideline range); United States v. Ocasio, 914 F.2d 330,

336 (1st Cir. 1990) (Generally, a sentencing judge must

articulate not only his or her reason for departing . . . but

must also offer a rationale for the degree of departure.");

see also United States v. Kelly, 1 F.3d 1137, 1144 (10th Cir.

1993) ("a district court must specifically articulate reasons

for the degree of departure. Merely explaining why a

departure was made does not fulfill the separate requirement

of stating the reasons for imposing the particular sentence."

(citations and internal quotations omitted)). Absent such an

explanation, we cannot assess the reasonableness of the

court's nine-level upward departure. Accordingly,

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defendant's sentence is vacated, and we remand the case for

resentencing.6

So ordered.

6. Given our ruling, we need not reach defendant's
contention that his sentence must be vacated because he was
not afforded a reasonable opportunity to review various
addenda to the Pre-sentence Report prior to sentencing.

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