NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0139n.06
No. 17-1552
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
Mar 15, 2018
)
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Eastern District
MARK JOHN VASQUEZ, JR., ) of Michigan
)
Defendant-Appellant. )
)
_________________________________/
BEFORE: GUY, SUTTON, and COOK, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant Mark John Vasquez, Jr., an Indian
tribal resident, was indicted and convicted by a jury of assault of a dating or intimate partner by
strangling or attempting to strangle, and domestic assault by a habitual offender. On appeal,
defendant challenges the sufficiency of the evidence, the testimony of the government’s expert
witness, and the reasonableness of his sentence. After considering the issues, we find no error
requiring reversal, and we affirm.
I.
Defendant and his victim, Marcella Jones, began living together in 2010 and married in
2012. They divorced in 2014 but resumed their relationship in an attempt to reconcile. Their
tumultuous relationship was characterized by drinking, partying, and argument.
Case No. 17-1552, United States v. Vazquez
On March 11, 2016, Jones went to defendant’s house, located on the Isabella reservation
in Isabella County, Michigan, intending to confront him about a suspected infidelity. The two
argued, and defendant concedes that he put Jones “in a tight, painful bear hug for a few seconds.”
After some more arguing, the conflict again became physical: according to defendant’s own
version of the facts, Jones “characterized the altercation [as] mutual but allowed that [defendant]
choked her twice. She refused to characterize the incident as strangling because she did not feel
that [defendant] intended to do extreme damage or harm.” At trial, Jones admitted that
defendant had both hands around her neck, which affected her breathing “a little bit.”
A responding police officer photographed marks on Jones’s neck, but Jones later testified that
she did not think they were from the fight.
Throughout Jones’s testimony, she took responsibility for initiating and maintaining the
fight with defendant, attributed her injuries to other events, recanted certain accusations she had
made to the police about defendant, and stated that she did not want defendant to go to prison.
She explained that she only called the police because she thought defendant was making a
criminal complaint against her; if she had known that defendant had not actually filed a
complaint, she would never have called the police. She stated that she did not believe that
defendant had technically strangled her by putting his hands around her neck and restricting her
breathing.
After Jones testified, the responding police officer, Shane Waskevich, testified. He stated
that, contrary to Jones’s testimony at trial, she had told him that defendant did cause the marks
on her neck, and Waskevich took some photos of the injuries. In response to that testimony,
defense counsel objected, citing Jones’s testimony at trial that the photos and injuries were not
caused by defendant. The trial court overruled the objection, reasoning that the evidence was
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based on an adequate foundation, and defense counsel was free to argue this fact question to the
jury.
Because of Jones’s reluctance to implicate defendant, the government called Holly
Rosen, a social worker at Michigan State University and the director of a domestic violence
program there.1 Rosen had never met Jones; rather, she testified generally about characteristics
and behaviors typical of victims of domestic violence. Rosen testified that it is typical for a
victim to blame herself and/or minimize what she experienced. Victims tend to lie to cover up
the abuse. They do not typically view themselves as victims and might assert that they are
unafraid of their assailant. Rosen also testified that it is typical for an abusive relationship to be
punctuated by “good times,” which makes it more difficult for the victim to leave the
relationship. Defendant never objected to Rosen’s testimony at trial.
The jury found defendant guilty of assault of a dating or intimate partner by strangling or
attempting to strangle, and domestic assault by a habitual offender. Defendant’s guideline range
was 51-63 months, and the district court sentenced him to a below-guideline range of 46 months
of imprisonment.
II.
A. Rosen’s Expert Testimony
A district court’s evidentiary rulings are reviewed for an abuse of discretion. United
States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). Because defendant did not object to
Rosen’s testimony at trial, however, defendant’s claims are reviewable only for plain error.
United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010). To prevail under this standard of
review, defendant must establish “(1) error, (2) that was obvious or clear, (3) that affected his
1
Defendant does not challenge Rosen’s qualifications as an expert. He challenges the content of
her testimony.
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substantial rights, and (4) affected the fairness, integrity, or public reputation of his judicial
proceedings.” Id.
In pertinent part, Federal Rule of Evidence 702 states that expert testimony is permitted if
“the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” Defendant argues that Rosen’s
testimony did not help the jury because Rosen “attempt[ed] to apply a general observation about
a larger group to particular individuals whose conduct is in question,” i.e., Jones. Def. Br. at 19
(quoting Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819, at *11 (N.D.
Tex. Mar. 8, 2017)). The government, on the other hand, claims that Rosen’s testimony did
assist the jury in understanding and evaluating Jones’s seemingly inconsistent actions and
testimony.
United States v. LaVictor, 848 F.3d 428 (6th Cir. 2017), is directly on point and resolves
this issue in the government’s favor. In LaVictor, a victim of domestic violence and sexual
assault implicated the defendant while she was in the hospital, but at the defendant’s detention
hearing and at trial, the victim testified that she consented to the defendant’s behavior,
disavowed her previous statements to police, and insisted that her complaints were the result of
confusion and pressure from hospital workers. Over the defendant’s objection, the district court
permitted the government’s expert witness to testify about the dynamics of victim recantation in
the context of domestic violence. We affirmed. As here, the defendant had argued that such
testimony was not helpful to the jury, but we reasoned that “[t]here is a factual issue in
dispute — whether or not [the victim] consented. [The expert]’s proposed testimony provides
the jury with an explanation for the contradictory evidence in the record. . . . Therefore, we
believe that such testimony is highly probative and helpful to the jury.” Id. at 442. Nothing
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distinguishes LaVictor from the instant case. LaVictor is therefore controlling, and the district
court did not commit an obvious or clear error.
Defendant attempts to distinguish his case from LaVictor using United States v. LeBlanc,
45 F. App’x 393 (6th Cir. 2002). In that case, the defendant—who was accused of child sexual
abuse—proffered the testimony of a psychologist who would have explained how “the memories
of young children . . . can readily become distorted and contaminated because of unintentional
inadvertent adult influence” during forensic interviews. Id. at 398. We affirmed that such
testimony was inadmissible, however, because the defense could not point “to a single instance
in which [the child victim] was supposedly subjected to allegedly coercive or suggestive
questioning techniques.” Id. at 400-01. In other words, the proffered expert testimony was not
“sufficiently tied to the facts of the case,” and, therefore, it would not help the trier of fact. Id. at
400 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).
Defendant argues that Rosen’s testimony is like that of the witness in LeBlanc because,
“akin to what occurred in LeBlanc, the record in the instant case lacked sufficient evidence that
Ms. Jones had previously been the victim of domestic abuse.” By contrast, defendant argues that
in LaVictor the expert’s testimony was only relevant because the victim’s relationship with the
defendant “was characterized by multiple instances of prior domestic abuse.” This argument
fails. Rosen’s testimony was made relevant by Jones’s conflicting testimony in conjunction with
the evidence of the 2016 incident—not by Jones’s history of victimhood. The same was true in
LaVictor. 848 F.3d at 442 (“[The expert]’s proposed testimony provides the jury with an
explanation for the contradictory evidence in the record.”). Nothing in LaVictor requires the
government to establish a pattern of domestic violence between defendant and Jones. Rather,
under LaVictor and LeBlanc, the expert’s testimony must bear some relevance to the proponent’s
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theory, which in turn must have some evidentiary support. In LeBlanc, the theory of coercive
interviewing had no evidentiary support, so expert testimony on that topic would not have been
helpful to the jury. In LaVictor and the instant case, however, the expert testimony was helpful
to the jury because it would help jurors make sense of a victim’s contradictory testimony.
Defendant also asserts that, applying Federal Rule of Evidence 704(b), Rosen
impermissibly testified on Jones’s credibility and thus invaded the exclusive province of the jury.
Def. Br. at 22-23 (quoting United States v. Cecil, 836 F.2d 1431, 1441 (4th Cir. 1988) (“[A]
psychiatrist may not testify to the credibility of a witness; that issue is one for the jury.”)). This
issue, too, is controlled by LaVictor, in which the defendant argued that “generic” testimony on
victim recantation violates the rule that “testimony that aides the jury in weighing a victim’s
credibility is improper.” 848 F.3d at 442. We held that domestic violence presents a special
case: “[T]he dual phenomenon of battered woman’s syndrome and victim recantation are
beyond the knowledge of an average juror.” Id. Accordingly, Rosen’s testimony did not usurp
the jury’s factfinding role, and the district court did not clearly err.
B. Sufficiency of the Evidence
We review the sufficiency of the evidence for a conviction “in the light most favorable to
the prosecution” to determine whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). Circumstantial evidence, if
“substantial and competent,” may sustain a conviction even if no direct evidence exists. United
States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002) (quoting United States v. Humphrey,
279 F.3d 372, 378 (6th Cir. 2002)).
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To convict defendant of assault of an intimate or dating partner by strangling or
attempted strangling in violation of 18 U.S.C. § 113(a)(8), the jury had to find, in part, that
“defendant assaulted [the victim] by strangling or attempting to strangle her.” 18 U.S.C.
§ 113(b)(4) defines “strangling” as “intentionally, knowingly, or recklessly impeding the normal
breathing or circulation of the blood of a person by applying pressure to the throat or neck,
regardless if that conduct results in any visible injury or whether there is any intent to kill or
protractedly injure the victim.” To convict Vasquez of domestic assault by a habitual offender,
the jury had to find, in part, that “defendant committed a domestic assault against [Jones].”
Defendant does not challenge the sufficiency of the evidence as it relates to any of the unlisted
elements of these two crimes.
Defendant argues that no rational jury could have convicted him in light of the
inconsistencies in Jones’s testimony and the fact that Officer Waskevich offered hearsay
testimony as to the conversations he had with Jones in the aftermath of the 2016 incident.2
The government does not dispute whether Waskevich’s testimony was hearsay.
Regardless, defendant’s sufficiency claim would fail even if Waskevich’s alleged hearsay
testimony is not considered. Even at her most reluctant, Jones offered testimony on which
defendant could be convicted. She testified that defendant had both hands around her neck,
which affected her breathing. This satisfies both the “strangulation” element in 18 U.S.C.
§ 113(a)(8) and the “domestic assault” element in 18 U.S.C. § 117. The domestic assault
conviction is further supported by the evidence that defendant “bear hugged” Jones, which
caused her pain. Although Jones attempted to recant certain of her accusations, downplayed
defendant’s intent, and took responsibility for the fight, her credibility in this regard was a fact
2
Defendant also asserts that his sufficiency concern “is magnified when one includes the
testimony of Ms. Rosen . . . .” As we concluded supra, however, Rosen’s testimony was proper.
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question for the jury. And “in cases in which we assess the sufficiency of the evidence, we do
not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that
of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994) (citing United States v.
Evans, 883 F.2d 496, 501 (6th Cir. 1989)).
C. Reasonableness of Sentence
Finally, defendant challenges the procedural and substantive reasonableness of his
sentence. Procedural error includes “failing to consider the [18 U.S.C.] § 3553(a) factors . . . or
failing to adequately explain the chosen sentence.” United States v. Curry, 536 F.3d 571, 573
(6th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “For a sentence to be
substantively reasonable, ‘it must be proportionate to the seriousness of the circumstances of the
offense and offender, and sufficient but not greater than necessary, to comply with the purposes’
of § 3553(a).” Id. (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). We
review the reasonableness of a district court’s sentence for an abuse of discretion. Id. (citing
Gall, 552 U.S. at 50). “If the sentence is within the Guidelines range, the appellate court may,
but is not required to, apply a presumption of reasonableness.” Gall, 552 U.S. at 51 (citing Rita
v. United States, 551 U.S. 338, 347 (2007)). Showing that a below-guidelines sentence is
unreasonable “is even more demanding.” Curry, 536 F.3d at 573 (citing United States v. Bailey,
264 F. App’x 480 (6th Cir. 2008)).
Regarding the substantive reasonableness of his sentence, defendant argues that the
district court gave unreasonably little weight to Jones’s request for leniency, his qualities as a
father, and his struggle with alcoholism. He concedes that the district court credited his and
Jones’s testimony to that effect, but asserts that “it does not appear that [the judge] adequately
considered the testimony of Ms. Jones who spoke at length in mitigation of sentencing.”
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The court gave adequate consideration to Jones’s request for leniency. After hearing
from both sides at sentencing, the court immediately acknowledged Jones’s allocution. The
court also addressed the subjects of her testimony, including defendant’s qualities as a father and
his alcoholism. Defendant’s underdeveloped claim is insufficient to overcome the strong
presumption of reasonableness that we apply to his below-guidelines sentence. This is
particularly true in light of evidence that Jones’s advocacy for defendant in the district court was
the result of their abusive relationship.
Regarding the procedural component of his sentencing claim, defendant asserts, simply,
that “it does not appear [the § 3553(a) factors] were considered individually.” The district court
did not abuse its discretion by failing to discuss the § 3553(a) factors to defendant’s satisfaction.
“[A] district court must offer ‘only a general statement of the reasons for its imposition of the
particular sentence.’” United States v. Ferguson, 518 F. App’x 458, 470 (6th Cir. 2013) (quoting
United States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011)). We have held that
a district court makes an adequate statement of reasons under
§ 3553(c)(1) by tailoring its comments to show the sentence was
consistent with the sentencing factors of § 3553(a). No specific
language is required when stating the reasons for a sentence, as a
district court simply must demonstrate that it was “mindful” of the
appropriate factors when imposing the sentence.
Id. at 470-71 (citing United States v. Parrado, 911 F.2d 1567, 1572-73 (11th Cir. 1990)).
The presentence investigation report discusses the factors individually, and in detail, and
the judge indicated several times that he read that report and invited the parties to object to it.
More importantly, contrary to defendant’s contention, the judge specifically delineated the
§ 3553(a) factors that he found most important to his sentence, including his decision to
downwardly depart. He discussed the defendant’s history and characteristics, both positive and
negative, as well as the characteristics of the offense. He considered the need to deter future
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conduct and to protect the public, drawing a link between defendant’s substance abuse and
criminal activity; he then considered the most effective correctional treatment, asking defendant
questions about how he would change his behavior to stay sober and specifying that defendant be
remanded to a facility with pertinent treatment programs. This is sufficient for us to conclude
that the district court was mindful of the § 3553(a) factors and did not abuse its discretion during
sentencing.
AFFIRMED.
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