                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 30 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30348

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00022-TOR-1

 v.
                                                 MEMORANDUM*
VALENTIN CARDENAS GONZALES,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                             Argued and Submitted
                     September 2, 2015—Seattle, Washington

Before: HAWKINS, GOULD, and N.R. SMITH, Circuit Judges.

      Valentin Gonzales appeals his convictions for two counts of aggravated

sexual abuse of a minor, 18 U.S.C. § 2241(c), and two counts of abusive sexual

contact, 18 U.S.C. § 2244(a)(5). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     Because E.A. and K.A. testified at trial, the admission of other

witnesses’s testimony recounting their out-of-court statements that Gonzales

touched them inappropriately did not violate the Confrontation Clause. See

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). Nor did the admission of

Gonzales’s own statements violate the Confrontation Clause. See United States v.

Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (citing United States v.

Nazemian, 948 F.2d 522, 525–26 (9th Cir. 1991)). We also reject Gonzales’s

argument that his right to confrontation was violated when the district court

precluded him from introducing, through cross-examination, exculpatory

statements he made during an interview with the FBI, even though the court had

admitted incriminating statements he made in the same interview. United States v.

Ortega, 203 F.3d 675, 682–83 (9th Cir. 2000).1

      Gonzales’s opening brief did not argue that E.A.’s out-of-court statements

about under-the-clothes touching, as recounted by Agent Knapp, were inadmissible



      1
         Gonzales has not distinctly challenged this limitation as a violation of due
process, so we do not discuss that issue. Cf. United States v. Fernandez, 839 F.2d
639, 640 (9th Cir. 1988) (per curiam) (holding that exclusion of defendant’s
exculpatory hearsay statement did not violate due process because government did
not introduce inculpatory hearsay statements by defendant); United States v.
Beneviste, 564 F.2d 335, 339–42 (9th Cir. 1977) (holding that excluding
declarant’s exculpatory out-of-court statements while admitting her inculpatory
out-of-court statements deprived defendant of a fair opportunity to defend himself).

                                          2
hearsay under the Federal Rules of Evidence. On that basis alone, we could

decline to consider the issue, but we exercise our discretion to review the issue

because the state has fully briefed the issue and would suffer no prejudice.2

Andrews v. Davis, 798 F.3d 759, 788–89 (9th Cir. 2015). Because Gonzales did

not object to these statements at trial, we apply the four-part test for plain error.3

United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (citing United States

v. Marcus, 560 U.S. 258, 262 (2010)).

      The district court erred by admitting E.A.’s hearsay statement to the agent

that she was touched under her clothing. That error was plain for the reason that

follows: Prior consistent statements of a witness are admissible to rebut a charge

of recent fabrication or improper motive or to rehabilitate the witnesses’s

credibility when attacked on another ground. Fed. R. Evid. 801(d)(1)(B). But this

was not a prior consistent statement because E.A. testified at trial that Gonzales

touched her over her clothes, which is inconsistent with Knapp’s testimony that

E.A. reported under-the-clothes touching.


      2
        The government indicated in supplemental briefing that it would not be
prejudiced by the panel reaching the issue.
      3
         While Gonzales successfully objected to the government’s attempt to
introduce a transcript and videotape of forensic interviews with E.A. and K.A., he
did not object to Agent Knapp’s statements describing E.A.’s assertions that
Gonzales touched her under her clothes.

                                            3
      This error was prejudicial and affected Gonzales’s substantial rights, as

without Knapp’s testimony, the government likely would not have presented

sufficient evidence to corroborate Gonzales’s admission that he touched E.A. under

her clothes. See United States v. Norris, 428 F.3d 907, 914–15 (9th Cir. 2005)

(citing United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992)); United

States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000). Considering the total

circumstances of this case, however, we conclude that the error does not “seriously

affect[] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting Marcus, 560 U.S. at 262). We have no reason to believe that Agent

Knapp’s statement was unreliable, particularly because she made it after reviewing

the interview transcript to refresh her memory about which child alleged under-the-

clothes touching. Nor can we conclude that E.A.’s out-of-court statement to

Knapp was unreliable, given both that her contradictory in-court statement may

have merely reflected a disinclination to discuss the details of the abuse

allegations4 and that an FBI agent also testified at trial that Gonzales had

previously confessed to him in an interview that Gonzales had touched E.A. under




      4
         For instance, E.A. at one point testified that she did not know where
Gonzales touched her, only to then clarify in response to government questioning
that she just didn’t want to talk about it.

                                           4
her clothing. Under these circumstances, we do not find the error to be so serious

as to warrant reversal on plain error review.5

      2.     The district court did not plainly err in its response to a juror’s

question about the intent required for the crimes charged. The district court

informed the jury that “the definition of sexual contact has a definition of the

intent” on a particular page in the written jury instructions, and those instructions

correctly described the required intent. It is not clear from the transcript what the

juror meant by then asking “does that count?” or what the district court meant

when responding “[i]t’s not necessary,” but because the written instructions were

correct and we have no reason to believe the jury disregarded those instructions

based on the ambiguous commentary following the judge’s correct response,

Gonzales does not show plain error. See United States v. Ancheta, 38 F.3d 1114,

1117 (9th Cir. 1994).

      3.     Gonzales argues that the record lacks sufficient evidence for a rational

jury to find (1) that Gonzales committed a sexual act with E.A. and (2) that N.B.

was an Indian within the meaning of the Indian Major Crimes Act (IMCA). We



      5
         We do not consider whether Gonzales’s trial counsel was constitutionally
ineffective for failing to object to the admission of these hearsay statements.
Gonzales may raise that issue through a habeas corpus petition where a record is
made of the reasons for action or inaction of counsel.

                                           5
consider all the evidence presented to the jury, whether properly admitted or not,

when assessing the sufficiency of the evidence. United States v. Preston, 751 F.3d

1008, 1029 (9th Cir. 2014) (en banc). Gonzales’s admission that he touched E.A.

“skin-to-skin,” resulting in an erection, and Knapp’s testimony that E.A. told her

that Gonzales placed his hand beneath her underwear were enough for a rational

jury to conclude that a sexual act had occurred. 18 U.S.C. § 2246(2)(D).

      The trial record also contains sufficient evidence that N.B. had a sufficient

quantum of Indian blood and was affiliated with a federally recognized Indian tribe

at the time of the charged conduct. See United States v. Zepeda, 792 F.3d 1103,

1113 (9th Cir. 2015) (en banc). Gonzales concedes that N.B. had sufficient Indian

blood. Regarding tribal affiliation, N.B. lived on the Spokane Indian Reservation

for three years and studied Salish, which she referred to as “our Indian language,”

in middle school. N.B. also received benefits through Indian Health Services, and

her father was an enrolled member in the tribe. This evidence is sufficient to

establish N.B. as an Indian under the IMCA. See United States v. LaBuff, 658 F.3d

873, 877 (9th Cir. 2011) (listing factors for analyzing tribal affiliation).

      AFFIRMED.




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