United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-60419
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
versus
MACEO SIMMONS,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Mississippi
(3:04-CR-132BN)
Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Convicted of sexual assault under color of law, involving
aggravated sexual abuse, in violation of 18 U.S.C. § 242, Maceo
Simmons contests primarily the admission both of Government expert-
witness testimony concerning sexual-assault victims and of Simmons’
prior state-trial testimony; and the sufficiency of the evidence
for his conviction. The Government challenges: the district
court’s refusal to impose a two-level enhancement under Guidelines
§ 2A3.1(b)(3)(A), applicable if the victim was “in the custody,
care, or supervisory control of the defendant”; and the
reasonableness of Simmons’ sentence, pursuant to United States v.
Booker, 543 U.S. 220 (2005) (requiring, inter alia,
“reasonableness” review of post-Booker sentences to be guided by
the factors stated in 18 U.S.C. § 3553(a)). CONVICTION AFFIRMED;
SENTENCE VACATED; REMANDED FOR RESENTENCING.
I.
In September 1999, Simmons and Thomas Catchings, both Jackson
Police Department (JPD) officers, assisted another officer during
the stop of an automobile containing 19-year-old passenger Syreeta
Robinson and her boyfriend, Towaski Bell. After discovering
marijuana in Robinson’s possession, Simmons confiscated it,
arrested and handcuffed her, and placed her in the back of his
police vehicle. Bell, who was arrested for possessing marijuana
and making false statements to a police officer, was placed in the
back of Catchings’ police vehicle. Before leaving the scene,
Simmons told Catchings that Robinson “wanted to have sex” with
Simmons.
Simmons and Catchings proceeded in their police vehicles to
the police station, where Simmons waited in his vehicle with
Robinson while Catchings took Bell inside for booking. After
Catchings emerged from the police station, Simmons radioed him and
asked him to follow Simmons’ police vehicle. After departing from
the police station, Simmons stopped his vehicle, removed Robinson’s
handcuffs, and moved her to the front seat of his police vehicle.
2
Next, he drove to an unlit, isolated area. Catchings followed
and, according to his testimony, parked his police vehicle in order
to act as a lookout while Simmons had sex with Robinson. Simmons
forced Robinson to perform oral sex twice, and sexually assaulted
her vaginally and anally. Robinson testified this activity was
against her will.
Robinson, who was sobbing, was driven home by Catchings. He
warned her not to tell anyone about the incident. Nevertheless,
shortly after reaching home, Robinson told her boyfriend’s mother
and a friend about the night’s events. Several days later,
Robinson visited a rape-crisis center. But, fearing possible
repercussions from the police, Robinson did not report the sexual
assault until October 2000, approximately a year after the
incident.
In November 2001, Simmons and Catchings were jointly tried in
Mississippi state court for sexual battery and conspiracy to commit
sexual battery. Simmons testified, denying having sex with
Robinson. Although both men were acquitted, Simmons was terminated
by the JPD in 2002 because of the incident with Robinson.
Simmons later became a police officer at Fort Hood, Texas.
Two of his fellow officers there testified Simmons told them he had
sex with a woman on, and in, his police vehicle while another
officer was present, which resulted in Simmons’ termination by the
JPD.
3
In September 2004, a federal grand jury indicted Simmons on
one count of sexual assault under color of law, in violation of 18
U.S.C. § 242, and one count of possession of a firearm while in
furtherance thereof, in violation of 18 U.S.C. § 924(c)(1)(A)(i).
In March 2005, Simmons was found guilty of the sexual-assault
charge, the jury finding the offense involved aggravated sexual
abuse resulting in bodily injury to the victim. He was acquitted
on the firearm charge.
Simmons was sentenced, inter alia, to 240 months in prison.
In imposing sentence, the district court sustained Simmons’
objection to Guidelines § 2A3.1(b)(3)(A)’s two-level “custody”
enhancement and, because of Simmons’ age, imposed a sentence 84
months below the low end of the Guidelines sentencing range
calculated by the district court.
II.
Simmons’ claims fail. The Government’s challenge to the
sentence succeeds for the denial of the “custody” enhancement.
Accordingly, because we remand for resentencing, we do not decide
the Government’s claim that the imposed sentence was not
reasonable.
A.
Simmons presents the following contentions: (1) the evidence
was insufficient for his conviction; (2) a Government expert
witness should not have been permitted to testify about rape-victim
4
conduct; (3) admitting excerpts of his state-trial testimony
violated Federal Rule of Evidence 404(b) (barring admission of
evidence of other crimes, wrongs, or acts to prove the character of
a person in order to show action in conformity therewith), as well
as the doctrine of collateral estoppel; (4) admitting evidence he
violated police procedures by failing to log seized marijuana also
violated Rule 404(b); (5) the Government’s use of the word “kidnap”
during closing argument denied him a fair trial; and (6) the court
erred by refusing to instruct the jury on Simmons’ state-court
acquittal.
1.
Simmons maintains the evidence was insufficient because the
Government produced no physical or medical evidence due to the
sexual assault’s not being reported for more than a year after the
incident; and Robinson’s testimonial inconsistencies undermined her
credibility. For these reasons, and because, according to Simmons,
no evidence showed he used force or Robinson experienced pain,
Simmons claims the evidence was insufficient to support his
aggravated-sexual-abuse conviction. At the close of both the
Government’s case-in-chief and all the evidence, Simmons moved for
judgment of acquittal on these grounds, pursuant to Federal Rule of
Criminal Procedure 29(a).
The denial of such a motion is reviewed de novo. United
States v. Meyers, 104 F.3d 76, 78 (5th Cir.), cert. denied, 520
5
U.S. 1218 (1997). Simmons’ having timely moved for such judgment,
the usual standard of review is employed: the verdict will be
affirmed “if a reasonable trier of fact could conclude from the
evidence that the elements of the offense were established beyond
a reasonable doubt”. United States v. Delgado, 256 F.3d 264, 273
(5th Cir. 2001). As is more than well established for this review,
we evaluate neither the weight of the evidence nor the credibility
of the witnesses. Id. That is for the jury. E.g., United States
v. Holmes, 406 F.3d 337, 351 (5th Cir.) (the jury “retains the sole
authority to weigh conflicting evidence and evaluate the
credibility of witnesses”) (internal quotations omitted), cert.
denied, 126 S.Ct. 375 (2005). All the evidence and reasonable
inferences are viewed in the light most favorable to the verdict.
E.g., United States v. Carillo-Morales, 27 F.3d 1054, 1064 (5th
Cir. 1994), cert. denied, 513 U.S. 1178 (1995); United States v.
Marshall, 762 F.2d 419, 423 (5th Cir. 1985) (in viewing all of the
evidence, we do not ask whether it was properly admitted).
a.
Simmons’ challenges to the lack of physical and medical
evidence of the sexual assault and to Robinson’s credibility are
unavailing. Nothing in 18 U.S.C. § 242 or § 2241(a) requires such
evidence. Conviction under § 242 is proper when, acting under
color of law, a person willfully deprives another of a federal
right. A § 242 offense involves “aggravated sexual abuse” when the
6
offender “knowingly causes another person to engage in a sexual
act” either by (1) “using force against that other person”, or (2)
“threatening or placing that other person in fear that any person
will be subjected to death, serious bodily injury, or kidnapping”.
18 U.S.C. § 2241(a). The evidence showing Simmons deprived
Robinson of federal rights and caused her to engage in sexual acts
through force consisted not merely of Robinson’s testimony, but
included Simmons’ statements and the testimony of numerous other
witnesses, including Catchings. Simmons’ challenges to Robinson’s
credibility, and to the sufficiency of the evidence in general,
overlook this abundant corroborating evidence.
Catchings testified: then a JPD officer, he acted as a
“lookout” while Simmons had sex with Robinson, and Simmons invited
him to have sex with her. Robinson’s boyfriend’s mother and
Robinson’s friend testified Robinson telephoned them in the early
morning hours following the sexual assault, distraught over the
incident. Two others confirmed Robinson visited a rape-crisis
center a few days later. The center’s director testified Robinson
appeared “traumatized”. Although Simmons did not testify, excerpts
of his prior state-court trial testimony were admitted and shown to
be false by JPD records. Finally, Simmons’ state-court testimony
denying having had sex with Robinson was contradicted by the two
Fort Hood Police Officers’ testimony that Simmons bragged about
7
having had sex with a woman in, or on the back of, his police
vehicle, and about having been terminated by the JPD as a result.
“[A] defendant’s exculpatory statements which are shown by
other evidence to be false may give rise to an inference of
consciousness of guilt”. United States v. Villarreal, 324 F.3d
319, 325 (5th Cir. 2003). Evidence of the falsity of Simmons’
prior statements, in conjunction with Robinson’s testimony and the
testimony of the Fort Hood Police Officers and other witnesses, was
sufficient for a reasonable jury to conclude Simmons sexually
assaulted Robinson.
b.
The evidence was also sufficient to prove the assault involved
“aggravated sexual abuse”, in violation of 18 U.S.C. § 2241(a). As
discussed supra, such abuse is to “knowingly cause[] another person
to engage in a sexual act (1) by using force against that other
person[], or (2) by threatening or placing that other person in
fear that any person will be subjected to death, serious bodily
injury, or kidnapping” when the person is in custody. Id.
“A defendant uses force within the meaning of § 2241 when he
employs restraint sufficient to prevent the victim from escaping
the sexual conduct.” United States v. Lucas, 157 F.3d 998, 1002
(5th Cir. 1998). Such force can be “implied from a disparity in
size and coercive power between the defendant and his victim”. Id.
8
Robinson testified: Simmons forced her to perform oral sex by
pulling her head; she was unable to avoid doing so because of “the
pressure he had on [her] neck”; and she was unable to escape
Simmons’ penetrating her anally and vaginally because he pinned her
between his body and his police vehicle. See Lucas, 157 F.3d at
1002 n.9 (defendant’s “pressing the victim against a table and
thereby blocking her means of egress suffices to constitute force
within the meaning of § 2241”).
Added to the corroborating testimony discussed supra
(including Catching’s testimony he served as a “lookout”), this
evidence is sufficient for a reasonable jury to find beyond a
reasonable doubt that Simmons committed sexual assault involving
aggravated sexual abuse. Accordingly, the evidence was sufficient
for conviction.
2.
Simmons challenges the expert testimony of Dr. Louise
Fitzgerald being permitted. Admission of such testimony is
reviewed under the following abuse of discretion standard:
“District courts enjoy wide latitude in determining the
admissibility of expert testimony, and the discretion of the trial
judge and his or her decision will not be disturbed on appeal
unless manifestly erroneous.” United States v. Tucker, 345 F.3d
320, 326 (5th Cir. 2003) (quoting Watkins v. Telsmith, Inc., 121
F.3d 984, 988 (5th Cir. 1997)) (emphasis added).
9
Of course, even if the court erred in allowing the testimony,
its ruling will not be disturbed unless the error was harmful,
affecting a substantial right of the complaining party. E.g.,
Bocanegra v. Vicmar Servs., 320 F.3d 581, 584 (5th Cir.), cert.
denied, 540 U.S. 825 (2003). See FED. R. EVID. 103(a) (“Error may
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected ....”). “In
the criminal context, in assessing whether an error affected a
‘substantial right’ of a defendant, the necessary inquiry is
‘whether the trier of fact would have found the defendant guilty
beyond a reasonable doubt with[out] the [challenged] evidence
....’” Tucker, 345 F.3d at 326-27 (quoting United States v.
Roberts, 887 F.2d 534, 536 (5th Cir. 1989)). Because the admission
of the expert testimony did not constitute manifest error, we do
not reach the harmless-error inquiry.
a.
Simmons contends Dr. Fitzgerald’s testimony failed to satisfy
the requirements of Daubert v. Dow Pharmaceuticals, 509 U.S. 579
(1993). Daubert held: when assessing the admissibility of expert
testimony, trial courts must determine “whether the expert is
proposing to testify to (1) scientific knowledge that (2) will
assist the trier of fact to understand or determine a fact in
issue”. Id. at 592. “[C]onfident that federal judges possess the
capacity to undertake this review”, Daubert nevertheless provided
10
guiding factors it described as neither exhaustive nor definitive.
Id. at 593. They include: (1) whether the theory or technique
underlying the expert’s testimony has been tested; (2) whether it
has been subjected to the rigors of peer review and publication;
(3) whether it has any known rate of error and standards for
controlling such error; and (4) whether the theory or technique has
attained “general acceptance” within the relevant expert community.
Id. at 593-94; see also FED. R. EVID. 702 (amended on 17 April 2000,
consistent with the Supreme Court’s decisions in Daubert and Kumho
Tire Co., 526 U.S. 137 (1999), to state district courts’ role in
assessing the reliability and helpfulness of expert testimony).
Dr. Fitzgerald was awarded a Ph.D. in psychology in 1979. At
the time of trial, she was a licensed psychologist and a university
professor of psychology, specializing in sexual violence and sexual
victimization. Simmons objected to Dr. Fitzgerald’s expert
qualification and testimony because: she had not conducted
research on memory; her research was founded on unreliable data and
methodology; and her opinions went to the ultimate credibility of
Robinson, the victim. The district court overruled the objection,
reasoning that the testimony would be sufficiently reliable and
helpful. It instructed the jury it could credit or discredit
expert testimony as it could any other testimony.
Simmons claims the testimony should not have been admitted
under Daubert because it relied on scientifically suspect
11
methodology. Noting that Dr. Fitzgerald’s indicia of rape-victim
behavior (e.g., non-reporting to police and feelings of shame,
humiliation, and self-blame) were developed for therapeutic, rather
than forensic, purposes, Simmons contends the testimony fails to
satisfy the first and third Daubert factors: empirical validity and
ascertainability of error rate. In other words, according to
Simmons, research on rape necessarily is biased in favor of
believing purported victims; to develop indicia of rape-victim
behavior, researchers must assume, as a starting premise, the
veracity of their subjects, even though there is no way to verify
the percentage of subjects actually raped. Therefore, Simmons
asserts: due to this inherent limitation, no empirically valid or
reliable forensic diagnostic techniques can be developed, only
therapeutic tools.
Obviously, these are inherent limitations for such research.
Nevertheless, expert testimony drawing on it is not thereby
proscribed by Daubert. See Jenson v. Eveleth Taconite Co., 130
F.3d 1287, 1297 (8th Cir. 1997) (recognizing inherent
methodological limitations in all social-science research,
particularly sexual-harassment research; nevertheless, holding such
expert testimony admissible), cert. denied, 524 U.S. 953 (1998).
First, as a general matter, “[t]o show that expert testimony is
reliable ... the government need not satisfy each Daubert factor”.
Hicks, 389 F.3d at 525 (5th Cir. 2004). Instead, as Daubert
12
emphasized, the trial court’s “gatekeeping” function is “a flexible
one”. 509 U.S. at 594-95 (emphasis added). In fact, our court has
held expert testimony admissible even though multiple Daubert
factors were not satisfied. See, e.g., United States v. Norris,
217 F.3d 262, 269-71 (5th Cir. 2000) (testimony admissible under
Daubert even though “no error rate was known” and “no independent
validation” of the expert’s testing had occurred).
Second, naturally occurring circumstances, such as the social
stigma attached to rape, may preclude ideal experimental conditions
and controls. See, e.g., Jenson, 130 F.3d at 1297 (noting the
necessarily diminished methodological precision of “soft” social
sciences, particularly in areas involving sexual victimization).
In such instances, other indicia of reliability are considered
under Daubert, including professional experience, education,
training, and observations. See, e.g., Pipitone v. Biomatrix,
Inc., 288 F.3d 239, 247 (5th Cir. 2002) (finding expert’s testimony
reliable under Daubert where “based mainly on his personal
observations, professional experience, education and training”).
Because there are areas of expertise, such as the “social sciences
in which the research, theories and opinions cannot have the
exactness of hard science methodologies”, Jenson, 130 F.3d at 1297,
trial judges are given broad discretion to determine “whether
Daubert’s specific factors are, or are not, reasonable measures of
13
reliability in a particular case”. Kumho Tire Co., 526 U.S. at
153.
Third, admission of Dr. Fitzgerald’s testimony is consistent
with the holdings of other circuits. See e.g., Beauchamp v. City
of Noblesville, 320 F.3d 733, 745 (7th Cir. 2003) (expert’s citing
rape research to explain victim’s “failure to immediately notify
the police that she had been raped” and her “inability to recall
the details of the crime clearly” could “be consistent with that of
a person who was raped”); United States v. Smith, 1998 WL 136564,
at *1-2 (6th Cir. 19 March 1998) (unpublished) (admitting
psychologist’s testimony that “she was familiar with reactions of
women who have been victims of rape or sexual assault and that
women often do not report the incidents immediately” to rebut
defendant’s assertion that alleged victims “were unreliable because
they did not immediately report their rapes and assaults”); United
States v. Alzanki, 54 F.3d 994, 1006 (1st Cir. 1995) (upholding, as
reliable under Daubert, testimony based on expert’s general
research and personal interaction with hundreds of abuse victims
that alleged victim’s “behavioral response to the non-sexual abuse
administered by the [defendants] was consistent with the behavior
of abuse victims generally”) (emphasis in original), cert. denied,
516 U.S. 1111 (1996).
14
b.
Simmons also contends Dr. Fitzgerald usurped the jury’s role
by testifying to the ultimate issue: whether Robinson was sexually
assaulted. In this regard, Dr. Fitzgerald testified that
Robinson’s behavior following the incident, as well as her in-court
testimony, were “quite consistent with that ... of rape victims”.
According to Simmons, this constitutes an expropriation of the
jury’s fact-finding function to determine the veracity of the
accuser. As noted, the district court overruled Simmons’ objection
on this point, reasoning, inter alia, that the jury could believe
or disregard Dr. Fitzgerald’s testimony as it could for any
witness.
Simmons’ jury-usurpation contention overlooks Dr. Fitzgerald’s
related testimony: “I never give testimony as to whether or not a
rape did or did not occur”. Simmons also does not mention the
district court’s instructing the jury it could discredit any
witness’ testimony. Even viewed in isolation, however, Dr.
Fitzgerald’s testimony did not impermissibly intrude upon the
jury’s determination of Robinson’s credibility. Mental-health
experts are permitted to testify that “symptoms and recollections
appear[] genuine and that [the expert believes she or] he ha[s] not
been ‘duped’” by a fabricated account. Skidmore v. Precision
Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (holding
district court did not abuse its discretion by admitting
15
psychiatrist’s testimony that plaintiff suffered post-traumatic
stress disorder and that “he did not think [the plaintiff] had lied
to him or fabricated her psychiatric symptoms”).
As in Skidmore, Dr. Fitzgerald stated Robinson’s behavior and
testimony were “quite consistent” with that of sexual-assault
victims. She did not even go as far as the expert in Skidmore who,
in addition to opining on the typicality of the plaintiff’s
behavior, also concluded the plaintiff had undergone a traumatic
event and suffered its aftermath in the form of post-traumatic
stress disorder. Id. Dr. Fitzgerald’s testimony did not intrude
on the jury’s fact-finding function.
3.
When a party timely objects, rulings on evidentiary issues are
reviewed for abuse of discretion. United States v. Polasek, 162
F.3d 878, 883 (5th Cir. 1998). See FED. R. EVID. 103(a). Simmons
challenges part of his state-trial testimony being admitted in
evidence during the Government’s case-in-chief. The challenged
portion concerned Simmons’ denials of assaulting Robinson and his
account of the night’s events.
At both a pre-trial hearing and the start of trial, Simmons
objected to such evidence, claiming: his prior testimony did not
qualify as an admission of a party-opponent under Federal Rule of
Evidence 801(d)(2)(A) (and, therefore, was not an exception to the
hearsay rule) because it was not incriminating; it was inadmissible
16
under Rule 404(b) because, if he was lying, such perjury would
constitute a separate extrinsic bad act; and, the Government was
collaterally estopped from introducing the prior testimony because
Simmons had been acquitted in state court. The district court
overruled Simmons’ objection, reasoning his testimony was
admissible under Rule 801(d)(2) and was not excludable under Rule
404(b).
a.
Because the testimony at issue was not hearsay under Rule
801(c), we need not consider whether it qualified as a Rule
801(d)(2)(A) exception to the hearsay rule.
Simmons’ prior testimony was not introduced for the truth of
what Simmons asserted. FED. R. EVID. 801(c) (“‘Hearsay’ is a
statement ... offered in evidence to prove the truth of the matter
asserted.”). Out-of-court statements are not hearsay when “the
point of the prosecutor’s introducing those statements was simply
to prove that the statements were made so as to establish a
foundation for later showing, through other admissible evidence,
that they were false”. Anderson v. United States, 417 U.S. 211,
219-20 (1974) (footnote omitted); see also United States v. Meyer,
733 F.2d 362, 363 (5th Cir. 1984) (holding defendant’s false
exculpatory statements admissible to show consciousness of guilt).
The Government proffered Simmons’ prior testimony not for its
veracity, but for use in demonstrating its falsity through other
17
evidence, thereby suggesting he fabricated an alibi. It was not
hearsay.
b.
Similarly, Simmons’ state-court testimony was not inadmissible
under Rule 404(b) because it did not constitute a separate
extrinsic bad act. The prior testimony was relevant to issues
other than Simmons’ bad character. It was introduced not to show
Simmons lied in the past, was a bad person, and, therefore, must
have sexually assaulted Robinson; rather, it was introduced to show
his consciousness of guilt and that he had lied in order to
fabricate an alibi. Villarreal, 324 F.3d at 325 (defendant’s false
statements “may give rise to an inference of consciousness of
guilt”).
c.
Finally, the Government was not collaterally estopped from
introducing the state-court testimony. Collateral estoppel applies
“when an issue of ultimate fact has once been determined by a valid
and final judgment[;] that issue cannot again be litigated between
the same parties in any future lawsuit”. United States v.
Angleton, 314 F.3d 767, 776 (5th Cir. 2002) (emphasis in original)
(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)), cert. denied,
538 U.S. 946 (2003). Because the United States and the State of
Mississippi “as separate sovereigns, are not the same party”, the
collateral-estoppel doctrine is inapposite. Id.
18
4.
Simmons next claims the district court abused its discretion
by admitting evidence Simmons failed to log the marijuana seized
during the traffic stop. Prior to, and during, trial, Simmons
moved to exclude evidence of his not doing so on the grounds it
constituted Rule 404(b) character evidence of other crimes. In
each instance, the court ruled against Simmons on the basis that
the evidence was intrinsically relevant to what happened the night
of the sexual assault and was not excluded by Rule 404(b).
Assuming arguendo the evidence was extrinsic, not intrinsic to
the charged offense, there was no error. “For admission under Rule
404(b), extrinsic evidence must satisfy two criteria: ‘(1) it must
be relevant under Federal Rule of Evidence 401 to an issue other
than the defendant’s character; and (2) it must have probative
value that substantially outweighs its prejudicial impact under
Federal Rule of Evidence 403.’” United States v. Infante, 404 F.3d
376, 388 (5th Cir. 2005) (quoting United States v. Walters, 351
F.3d 159, 165 (5th Cir. 2003)).
Simmons’ failure to log the marijuana was both relevant to
issues other than his character and probative on these issues
substantially beyond its prejudicial impact. The marijuana seizure
is integral to the events leading to Robinson’s sexual assault. It
also corroborates Robinson’s testimony that Simmons did not go
inside the police station prior to the assault. Moreover, it
19
suggests Simmons did not want JPD attention turned to Robinson; if
she were charged and interrogated for the marijuana possession, she
might reveal the sexual assault.
Finally, Simmons’ omission evinces consciousness of guilt. In
his state-trial testimony, Simmons claimed he logged the marijuana
after the traffic stop and spent considerable time at police
headquarters while Catchings booked Robinson’s boyfriend. In
district court, however, the Government showed Simmons never logged
the marijuana and did not return to police headquarters until two
hours later than he claimed. The jury could reasonably infer
Simmons’ apparent fabrication was an attempt to create an alibi to
conceal the sexual assault. Villarreal, 324 F.3d at 325 (“a
defendant's exculpatory statements which are shown by other
evidence to be false may give rise to an inference of consciousness
of guilt”) (citing United States v. Pringle, 576 F.2d 1114, 1120
(5th Cir. 1978)).
5.
Simmons maintains the district court abused its discretion by
allowing the Government, in closing argument, to state he kidnapped
Robinson. The Government argued:
The evidence clearly establishes that the
defendant placed Syreeta [Robinson] in fear of
death, serious bodily injury, or kidnapping.
First of all, he had already kidnapped her.
And the reason that kidnapping is one of the
of the factors that raises this to aggravated
sexual abuse is because of the very terror
that Syreeta told you about, the fear that she
20
experienced when she was taken out to this
remote location with two armed officers ....
At trial, Simmmons objected pursuant to Rule 404(b), which
prohibits the admission of extrinsic crimes or bad acts to show the
defendant behaved in conformity therewith. FED. R. EVID. 404(b).
Simmons asserted the Government was improperly insinuating he
committed kidnapping, a crime not charged, and which suggested he
possessed the character of a person who would commit sexual assault
and aggravated sexual abuse. The district court overruled the
objection, reasoning there was a fair inference Simmons had
kidnapped Robinson.
Simmons maintains the Government violated Rule 404(b), not by
introducing new evidence of prior crimes to show conformity
therewith, but by accusing Simmons of crimes not charged in the
indictment, which, according to Simmons, accomplishes the same
character attack Rule 404(b) proscribes. Accordingly, Simmons
maintains the district court reversibly erred by failing to
instruct the jury to disregard these comments.
Contrary to Simmons’ assertions, the Government’s kidnapping
statements were not a proffer of bad acts to demonstrate bad
character and subsequent behavior in conformity therewith.
Instead, they were offered to assist in showing Robinson complied
with Simmons’ sexual demands because she feared for her life. Even
if the statements were improper, they did not amend the indictment
21
or alter the essential elements the Government had to establish to
convict Simmons.
We further note that, as with any such abuse of discretion
claim, assuming arguendo the Government’s statements were
erroneously permitted, Simmons had to show further they affected
his substantial rights; the comments must have been so prejudicial
as to affect the outcome of the proceeding. United States v.
Saldana, 427 F.3d 298, 314 (5th Cir.), cert. denied, 126 S.Ct. 810
(2005). In the light of all the evidence and reasonable inferences
drawn therefrom, the kidnapping comment did not prejudice the jury
by suggesting any action not already presented to it by inference.
As the district court ruled, it was a fair inference. Therefore,
the contested portion of the Government’s closing argument did not
affect Simmons’ substantial rights in a way that affected the
outcome of his trial.
6.
Finally, Simmons maintains the district court reversibly erred
by refusing his request to instruct the jury he was acquitted in
state court. He made this request after the Government referred to
“the state trial” in a redirect-examination question to the victim.
This violated a motion-in-limine ruling instructing the parties to
refer to that trial as “prior proceedings”. Simmons twice moved
for a mistrial based on the alleged prejudicial effect of the
Government’s statement; it was denied each time.
22
Refusing to give a requested instruction is reviewed for abuse
of discretion. See United States v. De La Rosa, 171 F.3d 215, 219
(5th Cir. 1999). Further, a ruling that the Government’s
statements, even though violative of a prior ruling, did not
prejudice the defendant is also reviewed for abuse of discretion;
again, the defendant must show the statements affected his
substantial rights. See United States v. Morrow, 177 F.3d 272, 298
(5th Cir.), cert. denied, 528 U.S. 932 (1999). For obvious
reasons, “[t]he district judge's assessment of the prejudicial
effect carries considerable weight”. Id.
“[A]s a general matter, a trial court does not abuse its
discretion in excluding evidence of a prior acquittal on a related
charge”. De La Rosa, 171 F.3d at 219. Such evidence “is not
relevant because it does not prove innocence but rather merely
indicates that the prior prosecution failed to meet its burden of
proving beyond a reasonable doubt at least one element of the
crime”. Id. (internal quotation omitted). In addition, a judgment
of acquittal is hearsay that does not satisfy an exception to the
hearsay rules. Id. Finally, such evidence is often excludable
under Federal Rule of Evidence 403, as its probative value likely
will be “substantially outweighed by the danger of prejudice,
confusion of the issues, or misleading the jury”. Id. at 220
(quoting FED. R. EVID. 403).
23
Nevertheless, Simmons contends the reference to “the state
trial”, coupled with testimony that he was terminated by the JPD,
created an inference of prior adjudicated guilt so prejudicial that
instructing the jury on his prior acquittal was merited. Of
course, the jury could have inferred plausibly either the
Government was referring to the state trial of Catchings or that
Simmons was not convicted in the earlier state trial. Given these
plausible inferences, and the isolated reference to “the state
trial” (of which Simmons’ lead counsel admitted, to the district
court, not being aware until advised much later by co-counsel), we
conclude the court did not abuse its discretion by refusing the
requested state-trial-acquittal instruction.
B.
The two remaining issues are presented by the Government’s
cross-appeal: (1) whether the district court, in calculating the
Guidelines range, erred by refusing to impose § 2A3.1(b)(3)(A)’s
two-level enhancement, which applies if the victim was “in the
custody, care or supervisory control of the defendant”; and (2)
whether the 240-months sentence, which was considerably below the
Guideline range, was unreasonable under Booker.
1.
Although, pursuant to Booker, the district court did not
impose a mandatory Guidelines sentence, it was still required,
post-Booker, to properly determine the Guidelines range as part of
24
the process for determining Simmons’ sentence. E.g., United States
v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In that regard, its
factual findings are reviewed for clear error; its interpretation
and application of the Guidelines, de novo. E.g., United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
The 1998 version of the Guidelines, in effect at the time of
Simmons’ September 1999 offense, was applied because it was found
less punitive than the 2004 version in effect at the time of
sentencing. Although the Presentence Investigation Report, based
on the 1998 version, recommended a total offense level of 43,
corresponding to a sentence of life imprisonment, the district
court concluded the offense level was instead 41, corresponding to
a sentencing range of 324-405 months. It included in its
Guidelines calculation both a six-level “color of law” enhancement
under § 2H1.1(b)(1) and a four-level abduction-of-the-victim
enhancement under § 2A3.1(b)(5). It sustained, however, Simmons’
objection to a two-level enhancement under § 2A3.1(b)(3)(A) for a
victim’s being “in the custody, care, or supervisory control of the
defendant”. In support of that objection, Simmons contended §
2A3.1(b)(3)(A) was both mutually exclusive with the above-
referenced § 2A3.1(b)(5) or § 2H1.1(b)(1) and inapplicable to an
officer/arrestee situation. (As discussed infra, Simmons also
maintained there was no evidence Robinson was in his “custody”.)
The district court ruled imposition of the “custody” enhancement
25
would be “double counting” in the light of § 2A3.1(b)(5)’s
“abduction” enhancement.
a.
As the Government contends, this “double-counting” ruling was
erroneous. Application of both §§ 2A3.1(b)(3)(A) and 2A3.1(b)(5)
is not double-counting because each provision accounts for a
distinct harm. Section 2A3.1(b)(3)(A)’s “custody” enhancement
concerns the defendant’s violating a position of trust and accounts
for the increased risk of psychological damage made possible when
the victim is harmed by a person in such a position. See U.S.S.G.
§ 2A3.1 cmt. background (1998) (“Whether the custodial relationship
is temporary or permanent, the defendant in such a case is a person
the victim trusts or to whom the victim is entrusted. This
represents the potential for greater and prolonged psychological
damage.” (emphasis added)). More specifically, in the police-
custody context, § 2A3.1(b)(3)(A) “punishes abuse of power over an
individual in the officer’s physical and legal control” and
“recognizes the particular harm inflicted when an individual
entrusted to the care and supervision of an officer of the state is
unlawfully abused by [her] supposed caretaker”. United States v.
Volpe, 224 F.3d 72, 76 (2d Cir. 2000).
In contrast, a § 2A3.1(b)(5) “abduction” enhancement
recognizes that “[a]bduction increases the gravity of sexual
assault or other crimes because the perpetrator’s ability to
26
isolate the victim increases the likelihood that the victim will be
harmed”. United States v. Hefferon, 314 F.3d 211, 226 (5th Cir.
2002) (quoting United States v. Saknikent, 30 F.3d 1012, 1013 (8th
Cir. 1994)). See also U.S.S.G. § 1B1.1, cmt. n.1(A) (1998)
(“‘Abducted’ means that a victim was forced to accompany an
offender to a different location.”).
Moreover, even assuming arguendo §§ 2A3.1(b)(3)(A) and
2A3.1(b)(5) did address the same harm, this court has recognized
the lack of a general Guidelines double-counting prohibition,
holding it exists only if “specifically forbidden by the particular
[G]uideline at issue ... [through] express language”. United
States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (emphasis
added). The Guidelines contain no such specific, express
prohibition against application of both §§ 2A3.1(b)(3)(A) and
2A3.1(b)(5). With regard to § 2A3.1(b)(3)(A), there is only one
express double-counting prohibition, and it applies to § 3B1.3, not
§ 2A3.1(b)(5). See U.S.S.G. § 2A3.1 cmt. n.3 (1998) (“If the
adjustment in subsection (b)(3) applies, do not apply § 3B1.3
(Abuse of Position of Trust or Use of Special Skill).”). The
absence of such an express prohibition has been at least indirectly
recognized. See United States v. Brown, 330 F.3d 1073, 1079-80
(8th Cir. 2003) (affirming sentence which imposed enhancements
under both §§ 2A3.1(b)(5) and 2A3.1(b)(3)(A); no double-counting
contention was raised as to these enhancements, however).
27
b.
Along this line, rather than rely upon the district court’s
basis for not applying the enhancement, Simmons maintains, as he
did for sentencing, that § 2A3.1(b)(3)(A) is inapplicable because
Robinson was not in his “custody, care, or supervisory control”.
U.S.S.G. § 2A3.1(b)(3)(A). In doing so, he focuses on commentary
from the current, not the applicable 1998, version of the
Guidelines, which states, inter alia, that the enhancement
“includes offenses involving a victim less than 18 years of age
entrusted to the defendant, whether temporarily or permanently”.
U.S.S.G. § 2A3.1 cmt. n.3(A) (2005) (emphasis added).
At the time of the offense, the victim was 19 years of age.
Therefore, Simmons contends § 2A3.1(b)(3)(A) does not apply to
police custody of adults, such as the victim, but was meant only to
apply when a minor is entrusted to a caretaker. See, e.g., United
States v. Yazzie, 407 F.3d 1139, 1148 (10th Cir.) (Briscoe, J.,
concurring) (defendant testified he lived with and had disciplinary
authority over the minor-victim, who referred to defendant as her
stepfather), cert. denied, 126 S. Ct. 303 (2005); United States v.
Brown, 330 F.3d 1073, 1076 (8th Cir.) (minor-victim’s mother signed
note giving minor-victim permission to travel with defendant),
cert. denied, 540 U.S. 975 (2003); United States v. Carroll, 190
F.3d 290, 292 n.3 (5th Cir. 1999) (defendants were Boy Scout troop
28
leaders for the minor-victims), withdrawn in part, 227 F.3d 486
(5th Cir. 2000).
As the applicable 1998 Guidelines’ plain language makes clear,
however, § 2A3.1(b)(3)(A) is not limited to the minor/caretaker
context. Rather, it was explicitly intended to have “broad
application”. U.S.S.G. § 2A3.1 cmt. n.2 (1998) (emphasis added).
Although the Guidelines list “teachers, day care providers,[ and]
baby-sitters” as examples of those to whom § 2A3.1(b)(3)(A)
applies, they are simply “among those who [are] subject to this
enhancement”. Id. (emphasis added). Contrary to Simmons’
contentions, nothing in the Guidelines indicates § 2A3.1(b)(3)(A)
excludes police custody of adults; in fact, it has been applied in
such a context. See Volpe, 224 F.3d at 76 (affirming application
of § 2A3.1(b)(3)(A) when adult victim was in police custody).
Robinson, then 19, was arrested, handcuffed, and placed in
the back of Simmons’ police vehicle. He was an on-duty JPD
officer. Catchings, another on-duty JPD officer, was aware
Robinson was in Simmons’ police vehicle. Accordingly, for numerous
obvious reasons, she was “entrusted” to Simmons’ care and
supervision. Robinson remained under his control, and in his
custody, during the relevant events, until Catchings drove her
home. It goes without saying that Robinson was in Simmons’
“custody” or “care” for the purposes of § 2A3.1(b)(3)(A).
29
In sum, the district court misapplied § 2A3.1(b)(3)(A).
Accordingly, Simmons’ sentence must be vacated and this matter
remanded for resentencing.
2.
The 240-months sentence imposed by the district court was 84
months less than the low end of the Guidelines range (calculated
erroneously by the district court, as discussed above). The
Government claims the sentence is unreasonable because the district
court failed to properly consider factors contained in 18 U.S.C. §
3553(a) and focused instead on Simmons’ age. Because this matter
is remanded for resentencing, we do not decide this claimed
sentencing error. See United States v. Tzep-Mejia, 461 F.3d 522,
526 (5th Cir. 2006) (“If the district court makes an error in
application of the Guidelines, we vacate the resulting sentence
without reaching the sentence’s ultimate reasonableness.”)
(citation omitted).
Nevertheless, in our supervisory capacity, as well as to
assist the district court on remand, we note the following
Guidelines policy statement from the applicable 1998 version: “Age
... is not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range [but] may be a
reason to [depart downward] when the defendant is elderly and
infirm”. U.S.S.G. § 5H1.1 (1998) (emphasis added). On remand, §
5H1.1 is particularly noteworthy, because it appears the decision
30
to sentence below the Guideline range was based solely on Simmons’
age. When asked by the Government at sentencing to explain the
grounds for the sentence, the district judge replied:
The court simply feels that a term of
imprisonment of 20 years for a man who is 48
years old is a sufficient sentence in this
case and serves all of the reasons for
incarcerating a person for a long period of
time. The court does not feel that a sentence
in excess of 20 years would be beneficial
either to the victim, to the public or to the
defendant himself.
The court believes that a sentence within
the guideline range without the departure
would, in essence, put this man probably very
close if not at the end of his life. And I
think that 20 years of imprisonment is enough.
Pre-Booker, our court rejected this same age-based rationale.
See, e.g., United States v. Fierro, 38 F.3d 761, 775 (5th Cir.
1994) (vacating sentence, which had a downward departure, the
district court’s having reasoned “a 20-year sentence was long
enough” for a defendant who “would be 64 or 65 when he got out of
prison”; our court held, inter alia, “a defendant’s age is an
improper basis for departure unless the defendant is ‘elderly and
infirm’ at the time of sentencing”), cert. denied, 514 U.S. 1051
(1995).
Post-Booker, our court has not ruled on, in the light of §
5H1.1’s policy statement, a district court’s focus on age in
imposing a non-Guidelines (“reasonable”) sentence. Other circuits,
however, have held such consideration not inappropriate. See,
e.g., United States v. Davis, 458 F.3d 491, 498 (6th Cir. 2006)
31
(“[A] trial court ... has a freer hand to account for the
defendant’s age in its sentencing calculus under § 3353(a) than it
had before Booker”.); United States v. Smith, 445 F.3d 1, 5 (1st
Cir. 2006) (holding district court did not err, inter alia, by
considering age because “[t]hat a factor is discouraged or
forbidden under the guidelines does not automatically make it
irrelevant”). But see United States v. Lee, 454 F.3d 836, 839 (8th
Cir. 2006) (“age is normally not relevant to sentencing, unless the
defendant is elderly or infirm”).
Although consideration of age appears not to be per se
unreasonable post-Booker, a district court’s sentencing discretion,
and our reasonableness-inquiry on appeal, must be guided by the
sentencing considerations stated in 18 U.S.C. § 3553(a). See Tzep-
Mejia, 461 F.3d at 528; see also United States v. Mares, 402 F.3d
511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). One such
guiding consideration is “any pertinent policy statement ... issued
by the Sentencing Commission”. 18 U.S.C. § 3553(a)(5)(A). Our
court recently held: “[A] district court that ‘relies on any
factors ... deemed by the Guidelines to be prohibited or
discouraged ... [should] address these provisions and decide what
weight, if any, to afford them in light of Booker’”. United States
v. Duhon, 440 F.3d 711, 717 (5th Cir. 2006) (quoting United States
v. Jackson, 408 F.3d 301, 305 n.3 (6th Cir. 2005)) (alteration in
32
quotation), petition for cert. filed, (U.S. 18 May 2006) (No. 05-
11144).
Accordingly, a district court should acknowledge such a policy
statement and explain why the prohibited or discouraged factor, as
it relates to the defendant, is so extraordinary that the policy
statement should not apply. See id.; United States v. Guidry, 462
F.3d 373, 377 (5th Cir. 2006) (finding sentence unreasonable partly
because district court “failed to acknowledge [relevant Guidelines]
policy statement”). A district court’s failure to do so bears on
the reasonableness of the sentence it imposes, as guided by the §
3553(a) factors. See Duhon, 440 F.3d at 717; Guidry, 462 F.3d at
377.
III.
For the foregoing reasons, Simmons’ conviction is AFFIRMED;
his sentence is VACATED; and this matter is REMANDED for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING
33