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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