                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JAN 20 1998
.                        UNITED STATES COURT OF APPEALS

                                       TENTH CIRCUIT                      PATRICK FISHER
                                                                                    Clerk


    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
                                                             No. 96-2286
            v.                                         (D.C. No. CR 91-395 SC)
                                                           (D. New Mexico)
    CALVIN DEAN PETERS,

                 Defendant-Appellant.


                               ORDER AND JUDGMENT*


Before BALDOCK, LOGAN and EBEL, Circuit Judges.




        Defendant Calvin Dean Peters appeals from his conviction for aggravated sexual

abuse, in violation of 18 U.S.C. §§ 1153, 2241(a) and 2245(2)(A), and aggravated

burglary, in violation of 18 U.S.C. § 1153, both occurring on an Indian reservation. The

district court imposed a 210-month sentence to run consecutively to a 92-year New

Mexico sentence for rape.



        *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       The victim in this case was raped and robbed in August 1990 in her home on the

Navajo Indian Reservation. The forensic evidence recovered from the crime scene

matched defendant’s DNA profile which was on file from an earlier case (in which

defendant’s DNA had been obtained but did not match the forensic evidence). The

United States government then apprehended defendant and charged him with this rape

and burglary.

       While defendant was in federal custody, state law enforcement officials matched

his DNA profile with forensic evidence from two rapes in Farmington, New Mexico, that

occurred in March 1989 and June 1990. After being released to New Mexico authorities

for a consolidated state trial, defendant was convicted of the two Farmington rapes and

sentenced. Defendant then was returned to federal custody and tried and convicted in the

instant case.

       Defendant argues on appeal that the district court erred in (1) ruling on various

aspects of the DNA evidence; (2) admitting evidence of defendant’s two prior rape

convictions under Fed. R. Evid. 413; (3) ordering defendant to walk across the courtroom

for the jury to observe; and (4) sentencing defendant. He also argued that the prosecution

committed misconduct in offering testimony of Dr. Ranajit Chakraborty and in closing

argument.




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                                              I

       Defendant raises four arguments concerning the admission of DNA evidence. We

review the admission of evidence, including expert evidence, for abuse of discretion.

United States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994), cert. denied, 115 S. Ct. 1806

(1995).

       First, defendant contends that the district court should have held an admissibility

hearing on the scientific reliability and validity of the fifth and sixth probes in its DNA

testing procedure. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

The court conducted hearings on motions in limine as to the scientific reliability of DNA

evidence established through four probes. After those hearings, the FBI laboratory added

the fifth and sixth probes to its DNA testing procedure. The evidentiary samples admitted

at trial matched defendant’s known samples at six cellular loci. The government provided

the defense information about the new probes before trial but defense counsel did not

object to admission of the fifth and sixth probes.1

       The court did not abuse its discretion in admitting evidence of frequency statistics

generated by the fifth and sixth probes. All six probes were commercially available and

used by the FBI and the New Mexico Department of Public Safety (DPS). The court



       1
         In his reply brief, defense counsel reveals some knowledge that the district court
held a telephonic hearing as to admissibility of the fifth and sixth DNA probes; evidently
that hearing was not recorded and does not appear in the record. If the district court held
a telephonic hearing, defendant’s argument is moot.

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determined that DNA evidence was admissible under Daubert, and there is no factual

basis to exclude this additional information. Defense counsel was allowed to cross-

examine the government experts and present rebuttal witnesses concerning the reliability

of the frequency statistics generated by each of the probes.

       Defendant next contends that the district court erred in admitting population

frequency evidence developed under the fixed bin and modified ceiling methods with six

databases compiled by the FBI and the DPS laboratories. The record, however, reveals

that the scientific evidence of population frequency satisfied Daubert. Defense counsel

extensively cross-examined witnesses and produced its own expert testimony regarding

compilation of databases and reliability of methodology employed, specifically exploring

the random sampling issue. The district court did not abuse its discretion in admitting this

evidence.

       Defendant next argues that he was denied his Sixth Amendment right of

confrontation when the district court prevented his attorney from cross-examining an FBI

witness about two newspaper articles2 describing problems in FBI laboratory procedures,

or about an ongoing Justice Department study of the FBI laboratory. In disallowing the

cross-examination the district court cited lack of relevance and the possibility of prejudice

and confusion. Defendant’s proffer did not establish that the articles related to the FBI’s

forensic DNA lab or that the government witness had any specific knowledge about the


       2
           The newspaper articles are not part of the record on appeal.

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Justice Department investigation. Further, the district court allowed defense counsel to

extensively cross-examine government witnesses regarding laboratory procedures.

Although the Sixth Amendment guarantees a defendant the right to confront witnesses

against him, here the district court acted within its wide latitude to limit cross-

examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Fed. R. Evid. 403.

        Defendant finally argues that the district court improperly refused to instruct the

jury that DNA statistical evidence is scientifically invalid and unreliable. In fact,

however, the proffered instruction essentially recited the Daubert rule on general

admissibility of scientific evidence. The standard expert witness instructions given by the

district court were consistent with defendant’s proposed instructions and adequately

covered the issues at trial. See United States v. Pena, 930 F.2d 1486, 1492 (10th Cir.

1991) (refusal of particular jury instruction is discretionary).

                                               II

        Defendant next contends that the district court erred in admitting evidence of his

two prior rape convictions under Fed. R. Evid. 413 or Fed. R. Evid. 404(b). We review

decisions to admit evidence of prior acts for abuse of discretion, United States v. Johnson,

42 F.3d 1312, 1315 (10th Cir. 1994), mindful that Rule 413 evidence should be liberally

admitted. See United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997) (Rule

414).




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       Defendant asserts that a four-year pretrial delay effectively resulted in ex post

facto application of Rule 413 at his trial. We reject this argument based upon our holding

today in United States v. Enjady, No. 96-2285 (10th Cir. Jan. 20, 1998). Defendant’s trial

occurred after the effective date of Rule 413, and application of new evidentiary rules

does not create ex post facto issues. Collins v. Youngblood, 497 U.S. 37, 43 & n.3

(1990).

       Defendant also argues the district court should have excluded evidence of his two

prior rapes under Rule 403 because the potential for unfair prejudice outweighed its

probative value. The district court correctly engaged in Rule 403 balancing before

admitting Rule 413 evidence. See Enjady, No. 96-2285 (10th Cir. Jan. 20, 1998) (Rule

403 applies to Rule 413). The prior acts were clearly proved and resulted in convictions.

The evidence was probative in that the two prior rapes involved comparable

circumstances: they occurred in the same geographic vicinity and within a little more

than a year of the instant rape; the perpetrator in each rape wore approximately the same

shoe size; and all three crimes occurred in the victims’ homes after the rapist gained

entrance through a rear window. Potential prejudice was reduced by excluding details

that would most likely inflame a jury, such as information about the victims’ physical

injuries. The prior rape evidence did not take an inordinate amount of trial time and did

not detract significantly from the jury’s focus on the assault charged in the instant case.




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The district court did not abuse its discretion in admitting the Rule 413 prior acts

evidence.

       Defendant next contends that the district court erred in refusing to instruct the jury

under Rule 404(b) that it could consider the prior rape evidence only for a limited

purpose. We acknowledged in Enjady that Congress intended Rule 413 to remove certain

similar crimes evidence from the existing restrictions of Rule 404(b); Rule 413 evidence

is admissible if relevant and not unfairly prejudicial. Here the district court admitted the

prior rape evidence under Rule 413 and not under Rule 404(b). To give the jury a Rule

404(b) limiting instruction when the evidence was admitted under 413 would create

confusion.

                                             III

       Defendant asserts two instances of alleged prosecutorial misconduct. Allegations

of prosecutorial misconduct are mixed questions of law and fact that we review de novo.

Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir. 1994).

       First, defendant claims that in closing argument the prosecutor improperly referred

to defendant as a “serial rapist who must be stopped.” VIII Tr. 1399. The challenged

statement was a fair comment on the prosecution’s overwhelming case of circumstantial

evidence. Further, this isolated comment would not have persuaded the jury to convict

defendant. See United States v. Espinosa, 771 F.2d 1382, 1401 (10th Cir. 1985)




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(challenged argument reviewed to determine whether it would influence a jury to render

conviction on grounds that exceed admissible evidence).

       Defendant next contends that the government engaged in misconduct in presenting

the expert testimony of Dr. Ranajit Chakraborty. He asserts that Chakraborty’s testimony

explaining population genetics, laboratory error rates and DNA analysis review protocols

contradicted his previous testimony or authored works. A prosecutor may not solicit false

testimony or allow false or misleading testimony to stand uncorrected. See Alcorta v.

Texas, 355 U.S. 28, 30-32 (1957) (due process violation when prosecutor knew key

witness testified falsely regarding evidence critical to establish defense of “sudden

passion”). Here, however, the district court held a pretrial hearing to assess the

impeaching testimony and found Chakraborty credible. The jury also heard impeaching

evidence including extensive cross-examination of Chakraborty. The record reveals at

most only ambiguous or inconsistent statements from an earlier trial; such statements

provide a basis for impeaching a witness’ credibility, but do not render Chakraborty’s

testimony false or misleading. See Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991).

                                             IV

       Defendant next argues that the district court erred in ordering him to walk in front

of the jury after the close of the evidence. We review for abuse of discretion a district

court’s decision to reopen a case. United States v. Montgomery, 620 F.2d 753, 757 (10th

Cir. 1980).


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       The parties stipulated that defendant was approximately five feet five to six inches

tall. The victim, about five feet five or six inches tall, described her attacker as slightly

shorter, with his head at about her nose or slightly lower. After the close of evidence but

before closing argument, a juror asked to watch defendant walk across the courtroom to

observe his posture. Viewing defendant’s gait and posture allowed the jury to evaluate

the identification evidence presented at trial. See United States v. Bridgefourth, 538 F.2d

1251, 1252-53 (10th Cir. 1976) (upholding district court decision allowing government to

reopen case so defendant could wear hat seized from his apartment for comparison to

photo of crime). The district court did not abuse its discretion in reopening the evidence.

                                               V

       Defendant contends that the district court improperly sentenced him under the

1989 Sentencing Guidelines in effect when the crime occurred, rather than the 1996

guidelines in effect at the time of sentencing.3 He further asserts that the district court

erred in ordering that he serve his federal sentence consecutively to his state sentence and

in remanding him to state custody. We review application of the guidelines de novo,

United States v. Hershberger, 962 F.2d 1548, 1550 (10th Cir. 1992), and the decision to

impose consecutive or concurrent sentences for abuse of discretion. United States v.

Yates, 58 F.3d 542, 543-44 (10th Cir. 1995); 18 U.S.C. §§ 3553(a) and 3584(a).


       3
        The parties argued at sentencing and in their briefs concerning whether the 1989
or 1995 guidelines applied. In fact, the district court sentenced defendant on
November 1, 1996. USSG § 5G1.3 was the same in 1995 and 1996.

                                              -9-
       The Sentencing Guidelines in effect at the time of sentencing should be applied,

USSG § 1B1.11(a), (b)(1), unless that application creates an ex post facto violation.

Here, the applicable guideline, USSG § 5G1.3, allowed for consecutive sentences both in

1989 and 1996. See USSG § 5G1.3 comment. (Nov. 1989) (“Where the defendant is

serving an unexpired term of imprisonment, but did not commit the instant offense while

serving that term of imprisonment, the sentence for the instant offense may be imposed to

run consecutively or concurrently with the unexpired term of imprisonment.”); § 5G1.3(c)

p.s. (1995) (“In any other case, the sentence for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant offense.”); see also 18

U.S.C. §§ 3553(a) and 3584(a) and (b). Defendant’s punishment was not rendered more

harsh by application of the 1995 guideline.

       Defendant’s argument that the district court should not have returned him to state

custody after his federal trial and sentencing also has no merit. See Gee v. Kansas, 912

F.2d 414, 417-18 (10th Cir. 1990) (recognizing that government may surrender a prisoner

back to the state to serve an earlier imposed state sentence).

       AFFIRMED.

                                                     Entered for the Court

                                                     James K. Logan
                                                     Circuit Judge



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