IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 25, 2009
No. 08-60961 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL SHANE CAREY,
Defendant-Appellant
Appeal from the United States District Court for the
Southern District of Mississippi
Before WIENER, GARZA, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
A jury convicted Michael Shane Carey of four counts of aggravated sexual
abuse of a minor, and the trial court sentenced Carey to four life terms of
imprisonment. Carey appeals with three challenges to the admission of evidence
at trial, and with three challenges to his sentence. We affirm both the conviction
and the sentence.
No. 08-60961
I.
A.
“We recite the facts in the light most favorable to the verdict.” United
States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005). At age twenty-nine, Carey
lived with his girlfriend Marsha Bull, Bull’s eleven-year-old daughter “DJ,” and
Bull’s two other children. Carey sexually assaulted DJ in the home on four
occasions. On each occasion, Carey engaged in intercourse with DJ despite DJ’s
objections, and on one occasion, Carey wrapped DJ’s hair around her neck as a
means of choking DJ during the intercourse. After some delay, DJ notified Bull
of the assaults, prompting Bull to notify police and take DJ to a local hospital for
a physical examination.
B.
The government indicted Carey and alleged the commission of four counts
of aggravated sexual abuse with a minor younger than twelve. See 18 U.S.C.
2241(c) (aggravated sexual abuse with children); see also 18 U.S.C. 1153(a)
(jurisdiction over Indian crimes). DJ testified during the two-day trial, and at
times read from a police report—an officer’s written record of the officer’s prior
interview with DJ. The government also called Tammy Hutchison, a criminal
investigator for the Mississippi Band of Choctaw Indians who specialized in
child sexual assaults, to testify about her discussions with DJ. The jury found
Carey guilty of all four counts.
At Carey’s sentencing hearing, the government sought and obtained a
four-level enhancement for the use of force against the victim. See U.S.
Sentencing Guidelines Manual § 2A3.1(b)(2)(A) (2006) [hereinafter U.S.S.G.].
The district court’s final judgment sentenced Carey to four life terms of
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No. 08-60961
imprisonment, a life term of supervised release, and $400 in criminal monetary
penalties. Carey then filed the instant appeal.
II.
A.
First, Carey challenges his conviction by arguing that the prosecutor
misused a police report during DJ’s testimony. Under Federal Rule of Evidence
612, a witness may use a writing to refresh his or her recollection only if (1) the
witness requires refreshment, and (2) the writing actually refreshes the
witness’s memory. See United States v. Horton, 526 F.2d 884, 888–89 (5th Cir.
1976); Thompson v. United States, 342 F.2d 137, 139 (5th Cir. 1965). A witness
may not, under the guise of Rule 612, testify directly from a writing. See Horton,
526 F.2d at 888–89; Thompson, 342 F.2d at 139. Early in DJ’s testimony, her
inability to answer a question—“Do you remember what happened with you and
Michael the first time he touched you?”—prompted the government to show DJ
an “officer’s recollection of the interview with the witness [DJ]” that DJ had
reviewed. Carey argues that the resulting testimony violated Rule 612 because
the report did not actually refresh DJ’s memory. The government argues that
the police report did refresh DJ’s memory, and that no part of the record
indicates impermissible reliance.
We review the district court’s decision to admit DJ’s testimony over
Carey’s objection for an abuse of discretion. On appeal, Carey claims that DJ
impermissibly relied on the report throughout much of her testimony, but
because he only objected to one instance at trial, we apply abuse-of-discretion
review to that instance alone. See, e.g., United States v. Setser, 568 F.3d 482, 493
3
No. 08-60961
(5th Cir. 2009).1
Carey’s Rule 612 challenge fails for two reasons. Initially, Carey’s
proposed proof-of-refreshment requirement—that a witness relying upon a Rule
612 writing must explicitly declare that the writing has, in fact, refreshed the
witness’s memory of the subject—does not exist in this circuit, for we rejected it
long ago. See Thompson, 342 F.2d at 139–40. After the defendant in Thomspon
argued that “there was no showing that . . . the typewritten statement actually
refreshed his [the witness’s] recollection,” we announced principles that apply
directly to this case:
[W]here there was an absence of the customary formalistic wording
to show inability to recollect without aid and the refreshing effect of
the writing, the context of the specific queries, the witness’ spoken
reaction and the trial judge’s opportunity to observe the witness’
demeanor, leave no occasion to find reversible error in his rulings on
these objections.
Id. (emphasis added). While it remains true that “[c]aution must be exercised
to insure that the document is actually being used for purposes of refreshing and
not for purposes of putting words in the mouth of the witness,” Esperti v. United
States, 406 F.2d 148, 150 (5th Cir. 1969), the record of these proceedings lacks
sufficient support for Carey’s assertion that DJ read the jury her testimony from
1
Carey raised the failure-to-actually-refresh argument only once. When the prosecutor
first presented the report to DJ, Carey objected by arguing that “[t]here is no indication that
she [DJ] ever adopted that as her statement.” This did not suffice to preserve the failure-to-
actually-refresh argument because Carey’s attorney did not raise the argument as the
objection’s specific ground, and because that basis for an objection does not appear from the
context. See Fed. R. Evid. 103(a)(1); United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998)
(“A loosely formulated and imprecise objection will not preserve error.”). The only sufficient
objection came later, when Carey’s attorney objected by arguing that “[h]e is reading or
allowing her to read Tammy Hutchison’s statement and then asking leading questions from
that.”
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No. 08-60961
the report. See Thompson, 342 F.2d at 139–40. Instead, the record reflects
merely instances where DJ says that she does not know an answer, followed by
more questions that eventually elicit one. Accordingly, we must defer to the
district judge who determined that DJ rendered admissible testimony.
Carey also argues that the district court erred because it allowed DJ to
rely upon a document that DJ did not author, and that contained factual errors.
But contrary to Carey’s argument, the admissibility of testimony accompanied
by a Rule 612 refreshment does not depend upon the source of the writing, the
identity of the writing’s author, or the truth of the writing’s contents, for “[i]t is
hornbook law that any writing may be used to refresh the recollection of a
witness.” Esperti, 406 F.2d at 150; accord Thompson, 342 F.2d at 139–40; see 4
Jack V. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
§ 612.03[3][b] (Joseph M. McLaughlin ed. 2009); 28 Charles Alan Wright &
Victor James Gold, Federal Practice and Procedure § 6184 (1993 & Supp. 2009).
Even if, as Carey contends, the writing was neither authored by DJ nor
completely accurate, these considerations inform only the weight to be accorded
by the finder of fact, not the admissibility of DJ’s testimony. See Thompson, 342
F.2d at 139 (“The reliability or truthfulness of the statement was relevant only
to the problem of the weight and credibility to be accorded the witness’
testimony.”).
Carey exercised his right to ask DJ about her reliance on the report, and
to argue to the jury that the reliance rendered her testimony not credible. The
jury simply disagreed. Accordingly, we reject Carey’s Rule 612 challenges to
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No. 08-60961
DJ’s testimony.2
B.
Second, Carey challenges his conviction by arguing that the prosecutor
employed impermissible leading questions during DJ’s testimony. Federal Rule
of Evidence 611(c) prohibits leading questions “except as may be necessary to
develop the witness’ testimony.” Two exchanges are at issue here. First, Casey
objected after the following line of questions:
Q. Do you remember the first time that Michael ever touched
you? Can you remember the first time?
A. No, I can’t.
Q. Okay. do you remember talking to Tammy Hutchison?
A. Yes.
Q. And do you remember telling Tammy about some --
Mr. Lucas: Objection, Your Honor. Leading.
Mr. Lacy: Your Honor, this is a child.
The Court: Overruled. The objection is overruled.
A similar objection came later:
Q. Do you remember whether or not your Uncle Stanley ever
played Santa Claus?
Mr. Lucas: Your Honor, I have to object to leading on this.
2
To the extent that Carey predicates his challenge on a plain-error review of testimony
that went without objection, his claim fails for these same reasons.
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No. 08-60961
The Court: I understand the basis of your objection, but I also
acknowledge that here is -- that this is a child
and that he is entitled to certain latitude in
asking leading questions. So I’ll overrule the
objection.
With an objection, we review a district court’s decision to allow leading
questions for an abuse of discretion. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 762 (5th Cir. 2008). Carey argues that these questions
impermissibly led DJ, while the government argues that the circumstances of
the testimony—particularly DJ’s age and the nature of the crime—justified the
leading.
Carey’s Rule 611 challenge fails because our circuit has held that a
victim-witness’s youth and nervousness can satisfy Rule 611’s necessity
requirement. See Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968)
(allowing the government to lead a fifteen-year-old witness who appeared
“reluctant,” “nervous,” and “upset”). Here, the indictment concerned a sex crime,
the witness was twelve, and the record reveals several times where DJ appeared
nervous. For example, DJ testified “I don’t want to be here right now,” and when
asked by the prosecutor whether she “remember[ed] my telling you that you
were going to have to talk about some things that you didn’t want to,” she
answered “[y]es.” In light of this context and our precedent, Carey fails to
demonstrate that the district court abused its discretion in allowing the
government to lead DJ’s testimony.3
C.
3
Because we reject both of Carey’s evidentiary challenges, we do not address Carey’s
argument concerning the denial of his motion for judgment of acquittal, which assumes that
DJ’s testimony was erroneously admitted.
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No. 08-60961
Third, Carey challenges his conviction by arguing that the district court
allowed a lay witness to testify on a matter that required expert qualifications.
Under Federal Rule of Evidence 701, lay witnesses may render opinions only if
the opinions are “(a) rationally based on the perception of the witness, (b) helpful
to a clear understanding of the witness’ testimony or the determination of a fact
in issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” The challenged testimony comes from Tammy
Hutchison, a criminal investigator for the Mississippi Band of Choctaw Indians
who specialized in child sexual assaults. On direct examination, Hutchison
testified to two matters: (1) the kinds of questions that Hutchison asks of
children generally, and (2) the content of Hutchison’s conversations with DJ and
Hutchison’s follow-up investigations. Next, Carey’s cross-examination of
Hutchison focused on matters surrounding Hutchison’s investigative methods,
her conversation with DJ, and suggested inconsistencies in DJ’s accounts. Then
the following exchange between Mr. Lacy (for the government) and Mr. Jupiter
(for Carey) occurred:
Q. Investigator Hutchison, defense counsel has suggested that
the child gave prior inconsistent statements. How many child
cases have you investigated?
A. Over four or five hundred.
Q. Is it uncommon --
Mr. Jupiter: Your Honor, I object to this line of
questioning.
The Court: On what basis?
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No. 08-60961
Mr. Jupiter: Well, Your Honor, I mean, she is not going
to -- if she is going to testify, I think Mr.
Lacy basically is trying to get an expert
opinion about her investigating child cases,
and we are here about one particular case
here.
Mr. Lacy: Your Honor, I am -- I know the difference
between Rule 701 and 702.
Q. My question, Ms. Hutchison, is this: Has it been your
experience that you don’t always get the whole story the first
time out?
A. Many times.
Q. Okay. And ultimately --
The Court : The objection is overruled.
Q. And ultimately you get a full accounting of what happened?
A. Yes.
Q. And -- but not usually at first?
A. No.
Q. Okay. Is there any doubt in your mind about which mattress
the child and Michael Carey had sex on in her room based on
what she told you? 4
4
As an extension of the Rule 701 argument, Carey asserts that Hutchison vouched for
DJ’s credibility, rendering her testimony inadmissable. We review this contention for plain
error because Carey did not object at trial. See, e.g., United States v. Binker, 795 F.2d 1218,
1227–28 (5th Cir. 1986). While impermissibly vouching for a witnesses may constitute plain
error, it is certainly not always plain error. See United States v. Carter, 953 F.2d 1449,
1460–61 (5th Cir. 1992) (prosecutorial vouching not plain error). The district court’s allowance
9
No. 08-60961
A. No, sir.
Q. All right.
Q. I have no further questions of this witness.
With an objection, we review evidentiary rulings for an abuse of discretion.
E.g., United States v. Miranda, 248 F.3d 434, 440 (5th Cir. 2001). Carey argues
that the district court violated Rule 701 when it allowed Hutchison to testify
that child abuse victims initially give vague accounts of abuse before providing
more complete accounts. The government argues that the testimony came from
experience, not necessarily expertise; that Hutchison’s lay status was made clear
to the jury; that the testimony was a permissible response to the defendant’s
previous questioning; and that any error was harmless.
While there is an argument to be made that Hutchison was entitled to rely
upon her long histories of personal experience without triggering Rule 702
expert requirements, see Miranda, 248 F.3d at 441; United States v. Darland,
659 F.2d 70, 72 (5th Cir. Unit B Oct. 1981), we need not reach that question
because we conclude that Carey opened the door and invited any error that may
have occurred. “A defendant may not complain on appeal that he was prejudiced
by evidence relating to a subject which he opened up at trial.” United States v.
Wilson, 439 F.2d 1081, 1082 (5th Cir. 1971). Thus, we have often identified
circumstances where, because an inquiry during cross-examination calls for
rebuttal during redirect, no error can be predicated on the latter. See United
of this testimony presents no plain error because the context and brevity of Hutchison’s
comment limited any prejudicial effects, and because the government’s presentation of an
otherwise strong case, which included both testimony from DJ about each event and evidence
from the scene, rendered any error harmless.
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No. 08-60961
States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007); United States v. Acosta, 475
F.3d 677, 683–84 (5th Cir. 2007); United States v. Maldonado, 472 F.3d 388, 398
(5th Cir. 2006). This is just such a case, for Carey complains of testimony that
came only after Carey had pursued an inquiry into Hutchison’s investigative
experience and after Carey had pursued an inquiry into the meaning of DJ’s
inconsistent accounts. During Carey’s cross-examination of Hutchison, Carey’s
attorney asked Hutchison whether Hutchison “d[id] hundreds of these cases;”
whether she “would have known that she [DJ] would have given the history to
the doctor and to the nurse;” whether “if a child is not able to give you
[Hutchison], for instance, dates . . . you [Hutchison] start with events like
Christmas;” and whether the interview with DJ was, in certain respects, like
“you [Hutchison] do in all your interviews.” In addition, Carey’s attorney asked
Hutchison about “inconsistent accounts” DJ had given to other persons, and
asked Hutchison whether DJ gave Hutchison “any indication that she gave a
different account in terms of when this started.” Thus, because Carey’s decision
to pursue these subjects during cross-examination entitled the government to
elicit rebuttal evidence, we cannot conclude that the district court erred in
admitting Hutchison’s testimony on redirect.
III.
Carey challenges his four life sentences by arguing that the district court
committed both procedural and substantive errors.
Post- Booker, we employ a two-step process in reviewing
sentences imposed by district courts. First, we determine whether
the district court properly interpreted and applied the sentencing
guidelines. We review a district court’s interpretation and
application de novo. If we reach the second step of the review
process, we consider whether the sentence imposed is reasonable.
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United States v. Newsom, 508 F.3d 731, 733–34 (5th Cir. 2007) (citations
omitted).
A.
In his first challenge to the district court’s sentence, Carey argues that the
district court made an erroneous guideline calculation. Under the applicable
United States Sentencing Guideline, an act of criminal sexual abuse merits a
four-level increase if the defendant used force against the victim as described in
18 U.S.C. § 2241(a). U.S.S.G. § 2A3.1(b)(1). Section 2241(a), in turn, proscribes
“knowingly caus[ing] another person to engage in a sexual act” by “using force
against that other person.” 18 U.S.C. § 2241(a).5 At sentencing, the government
argued that Carey triggered the enhancement by choking DJ with her hair
during one of the incidents.6 The choking scared DJ, prevented her from
breathing, and lasted for the duration of Carey’s intercourse with DJ. The
district court applied the enhancement, resulting in a four-level increase in
Carey’s calculation. Carey now challenges the enhancement by arguing that this
kind of force does not fall within § 2241(a) because it occurred during the act of
assault itself, and not separately.7 The government argues that this kind of force
5
Section 2241(a)(2) operates like § 2241(a)(1) to trigger an enhancement if the
defendant “knowingly cause[d] another person to engage in a sexual act” by “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)(2).
6
The government also presented two other possible justifications for the enhancement:
(1) Carey’s act of locking the bedroom door before intercourse on one occasion, and (2) Carey’s
relative size advantage. We need not determine whether either of these would justify an
enhancement because our disposition of the choking issue is dispositive.
7
The text of U.S.S.G. § 2A3.1 itself does not supply the use-of-force requirement.
Instead, § 2A3.1(b)(1) says only that “[i]f the offense involved conduct described in 18 U.S.C.
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No. 08-60961
does fall within § 2241(a) notwithstanding the fact that it occurred during the
act of assault.
Our holdings in United States v. Lucas, 157 F.3d 998 (5th Cir. 1998), and
United States v. Simmons, 470 F.3d 1115 (5th Cir. 2006), foreclose Carey’s
argument. In Lucas, we sought to apply § 2A3.1 by determining whether the
defendant had violated § 2241 when he “summoned [the victim] to a relatively
secluded location, locked the door so that she could not escape his advances, and
pressed her against a table in such a way that she could not leave.” 157 F.3d at
1002–03 (footnote call omitted). We then determined that a “defendant uses
force within the meaning of § 2241 when he employs restraint sufficient to
prevent the victim from escaping the sexual conduct,” thereby refusing to
exclude the conduct occurring during the assault from the scope of § 2241(a). Id.
at 1102. Likewise, in Simmons we addressed whether an “assault involved
‘aggravated sexual abuse’, in violation of 18 U.S.C. § 2241(a).” 470 F.3d at 1121.
We then followed Lucas and held that the defendant’s conduct fell within
§ 2241(a):
[The defendant] forced her [the victim] 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 [the
defendant’s] 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”).
Id. at 1121. To follow these precedents, we must hold that Carey’s act of choking
§ 2241(a) or (b), increase by 4 levels.” U.S.S.G. § 2A3.1(b)(1).
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No. 08-60961
DJ fell within § 2241(a) because the nature and context of the conduct is
indistinguishable.8
B.
Carey’s second challenge to the district court’s sentence is for procedural
reasonableness. Within-guidelines sentences require an explanation that allows
for meaningful appellate review and the perception of fair sentencing. United
States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009), cert. denied,
No. 08-11099, 2009 WL 1849974 (U.S. Oct. 5, 2009). At Carey’s sentencing
hearing, the district court stated that “the record supports the four-level
enhancement,” and that “the presentence report will, therefor, be adopted.”
After Carey objected to the district court’s adoption of the presentence report,
the district court noted: “Well, the child’s testimony, as well as what she told the
people after she had been assaulted. I’m basing it on all of that.” Before
announcing the sentence, the district court stated that “[t]he court has
considered the advisory guideline computations and the sentencing factors under
18 United States Code, Section 3553(a).”
With an objection, we evaluate procedural reasonableness by reviewing
“the district court’s application of the Guidelines de novo and its factual findings
for clear error.” United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir.
2009). Carey argues that the district court conducted a procedurally
8
Carey relies on the Second Circuit’s decision in United States v. Volpe, 224 F.3d 72 (2d
Cir. 2000), to support his view that conduct occurring during the act of sexual assault should
not trigger the § 2A3.1(b)(1) enhancement. While the Second Circuit might decide this case
differently, see id. at 77 (Ҥ 2A3.1(b)(1) appears to be aimed at uses of force to compel the
victim’s submission to a sexual assault, not at more forceful assaults, especially since the
degree of injury to the victim is taken into account separately in § 2A3.1(b)(4).”), our precedent
forecloses our reconsideration of the issue.
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unreasonable hearing by failing to make findings concerning the disparity
factors under 18 U.S.C. § 3553(a). The government argues that the district court
did, in fact, examine the § 3553 factors and consider all of Carey’s arguments.
In this case, Carey’s procedural challenge fails because the district court’s
explanation exceeds that which sufficed in Rita v. United States, 551 U.S. 338
(2007), United States v. Rodriguez, 523 F.3d 519 (5th Cir. 2008), United States
v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008), and United States v. Bonilla, 524
F.3d 647 (5th Cir. 2008). See Mondragon-Santiago, 564 F.3d at 362–64.
C.
In his final challenge to the district court’s sentence, Carey argues that the
district court rendered a substantively unreasonable sentence. The district court
sentenced Carey to what the Guidelines called for: one life sentence for each of
Carey’s four offenses. Carey cites the interest in “avoid[ing] unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), and argues that the
district court’s sentence was unreasonable because analogous defendants in
other jurisdictions received lesser sentences. The government responds by
arguing that the district court’s sentence fell exactly within the Guidelines, and
asserts that the circumstances of the case justify the sentence.
Carey’s argument for unreasonableness fails for several reasons. “In this
circuit, a sentence within the Guidelines range is presumed reasonable on
appeal.” Mondragon-Santiago, 564 F.3d at 360. Moreover, “a reviewing court’s
concern about unwarranted disparities is at a minimum when a sentence is
within the Guidelines range.” United States v. Willingham, 497 F.3d 541, 545
(5th Cir. 2007); accord United States v. Fernandez, 559 F.3d 303, 324 (5th Cir.
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2009). In addition, Carey’s argument for national disparity is undermined by
the imposition of analogous sentences in other courts. See United States v. Mix,
457 F.3d 906, 909, 911–12 (9th Cir. 2006); see also United States v. Wright, 540
F.3d 833, 837 (8th Cir. 2008); United States v. Brown, 330 F.3d 1073, 1076 (8th
Cir. 2003). As a result, we do not conclude that the district court imposed an
unreasonable sentence.
IV.
Accordingly, because Carey’s challenges to the jury’s conviction and the
district court’s sentence fail, the district court’s judgment is AFFIRMED.
16