                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 15, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 14-2000
                                             (D.Ct. No. 1:06-CR-00759-MCA-2)
 JONATHAN PABLO,                                          (D. N.M.)

          Defendant - Appellant.
                        ______________________________

                              ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      A jury convicted Appellant Jonathan Pablo of aggravated sexual abuse

(against a minor involving vaginal rape), kidnaping, assault, and carjacking. See


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
United States v. Pablo, 625 F.3d 1285, 1290 (10th Cir. 2010) (Pablo I). The

district court sentenced him to 200 months imprisonment on his convictions for

rape, kidnaping, and carjacking, to run concurrently with a 120-month sentence

for his conviction for assault. Id. We affirmed Mr. Pablo’s convictions, see id. at

1303, which the Supreme Court vacated and remanded for consideration in light

of its decision in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). See

Pablo v. United States, 133 S. Ct. 56 (2012). On remand, we again affirmed Mr.

Pablo’s convictions. See United States v. Pablo, 696 F.3d 1280, 1302 (2012)

(Pablo II). While on remand, Mr. Pablo filed the instant motion for a new trial on

claims of newly-discovered medical evidence and Brady violations, which the

district court denied. While Mr. Pablo now appeals the denial of his motion for a

new trial, his attorney has filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set

forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal.

                      I. Factual and Procedural Background

      Facts supporting Mr. Pablo’s convictions are contained in our prior

decisions on appeal and their reiteration is unnecessary for our disposition of this

appeal. See Pablo II, 696 F.3d at 1284-86; Pablo I, 625 F.3d at 1288-90. In

moving for a new trial, Mr. Pablo alleged: 1) the SAER (Sexual Assault




                                         -2-
Examination Report), 1 mentioning tears to the posterior fourchette and prepared

by Dr. Linda Lucy Boulanger, who treated the victim, was improperly suppressed

given it was not provided to the defense until the morning she testified at trial;

and 2) in testifying on her treatment of the victim after the alleged sexual assault,

Dr. Boulanger improperly gave an opinion, without a voir dire examination on her

expertise, that the tears were consistent with non-consensual intercourse. Based

on these circumstances, Mr. Pablo alleged the newly-discovered medical evidence

resulted in his being unable to discredit Dr. Boulanger for the purpose of

producing an acquittal at a new trial or otherwise to prepare a defense to show

fourchette tears are not necessarily diagnostic of rape but may be present in cases

of consensual sexual intercourse under certain conditions. He also claimed Brady

violations occurred because the evidence was “favorable” to him, was suppressed

by the government either willfully or inadvertently, and caused prejudice.

      The district court denied Mr. Pablo’s motion for new trial. It determined,

in part: 1) the government only intended to call Dr. Boulanger as a fact witness as

to her first-hand observations of the victim, and therefore no written summary for

an expert witness was necessary; 2) the defense failed to object to Dr.

Boulanger’s opinion statement regarding the fourchette tears and, instead, elicited


      1
         The SAER is also referred to in the record and Appellant’s brief as the
SANE report and is different than another document, also filled out by the same
doctor, entitled “Crownpoint Triage and Nurses Notes” (hereafter “triage notes”),
both of which mention the fourchette tears.

                                         -3-
further opinion testimony on cross-examination, and therefore the government did

not violate any rules regarding her opinion testimony; and 3) the defense received

notice of the fourchette tears when it received the triage notes months prior to

trial which were filled out by the same doctor at the time of treatment and

expressly noted such tears. As a result, it concluded information on the

fourchette tears did not qualify as “newly-discovered” evidence nor was it

otherwise impermissibly suppressed. It also concluded a few minutes of legal

research would have led counsel to numerous sexual assault cases discussing the

significance of evidence on the injury to a victim’s posterior fourchette and that

no Brady violation occurred, as evidence on the posterior fourchette tears was

provided months prior to the trial and therefore not suppressed by the

government.

                                    II. Discussion

      After Mr. Pablo filed a notice of appeal, his appointed counsel, who

participated in his motion for a new trial, but not his prior trial, filed an Anders

motion and appeal brief, explaining a review of the record revealed no

nonfrivolous issues to appeal, and moving for an order permitting his withdrawal

as counsel. See Anders, 386 U.S. at 744. In support of the Anders filing, counsel

notes: 1) the doctor’s scrawls regarding her finding of fourchette tears are

contained on the last page of the triage notes and therefore are not “newly-

discovered evidence”; 2) no request for a trial continuance or suspension of trial

                                          -4-
was made nor was the doctor recalled for voir dire or further examination; and 3)

no Brady violation arose because the triage notes with the information about the

tears were prepared on the same date 2 as the alleged attack and provided to the

defense months in advance of trial. Finally, counsel points out that because the

government provided the triage notes and evidence of the fourchette tears to the

defense months prior to the trial, the defense had ample time to prepare for cross

examination and any failure to learn of this evidence was caused by the defense’s

own lack of diligence.

      Pursuant to Anders, this court gave Mr. Pablo an opportunity to respond to

his counsel’s Anders brief. See 386 U.S. at 744. Mr. Pablo did not file a

response. The government filed a notice of its intention not to file an answer

brief in this appeal.

      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. As Mr. Pablo’s counsel acknowledges and the

district court explained, the government provided the triage notes containing the

doctor’s notation on the fourchette tears to the defense months before his trial.

Thus, neither the evidence concerning the fourchette tears nor the doctor’s




      2
         The record shows the triage notes were prepared the same morning as the
attack which extended into the morning of January 30, 2005. See Pablo II, 696
F.3d at 1284.

                                         -5-
testimony as to the existence of such tears is newly-discovered evidence, 3 and it is

therefore evident the defense received notice sufficient to prepare a defense,

including cross-examination of the doctor who made the entry about the tears on

the triage notes. Moreover, the defense waived or forfeited 4 its objection to Dr.

Boulanger’s opinion statement–that the tears were consistent with non-consensual

sex–when it failed to object to the rendering of such an opinion and did not

request a continuance or conduct voir dire but, instead, proceeded to elicit

additional opinion testimony from that witness. As to any Brady violations, 5 none

occurred because the allegedly-suppressed evidence concerning the tears was

furnished in advance of trial in the form of the doctor’s triage notes. Finally, the


      3
        To prevail on a motion for a new trial based on newly-discovered
evidence, the defendant must establish:

      (1) the evidence was discovered after trial; (2) the failure to learn of
      the evidence was not caused by lack of diligence; (3) the new
      evidence is not merely impeaching or cumulative; (4) the new
      evidence is material to the principal issues involved; and (5) the new
      evidence would probably produce an acquittal if a new trial were
      granted.

United States v. Hill, 737 F.3d 683, 687 (10th Cir. 2013), cert. denied, 134 S. Ct.
1905 (2014).
      4
         A waived claim is one a party knowingly and intelligently relinquishes
while a forfeited claim is one a party merely failed to preserve. See United States
v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012).
      5
        To establish a Brady violation for the purpose of a new trial, a defendant
must show: 1) the prosecution suppressed evidence; 2) which was favorable to the
defendant; and 3) was material. See United States v. Reese, 745 F.3d 1075, 1083
(10th Cir. 2014).

                                         -6-
jury clearly credited the testimony of the government’s witnesses, including the

victim herself, 6 as well as DNA and serology lab evidence, 7 in finding Mr. Pablo

committed the crimes of sexual assault by rape, kidnaping, carjacking, and

assault. Thus, even without the doctor’s testimony, the fourchette notation, and

her opinion, “sufficiently strong evidence” on the conviction for rape exists “to

sustain our confidence in the jury’s verdict.” Reese, 745 F.3d at 1084 n.6. As a

result, no nonfrivolous reason exists supporting an appeal. Our conclusion is

bolstered by Mr. Pablo’s failure to take the opportunity to offer any additional

nonfrivolous reason warranting a new trial.

                                  III. Conclusion

      For these reasons, we GRANT counsel’s motion to withdraw and

DISMISS the appeal.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




      6
          See Pablo II, 696 F.3d at 1284-86.
      7
         See id. at 1286-87, 1293-95 (explaining DNA and serology analyses were
conducted and holding no error occurred in allowing testimony of lab employee
on results which showed Mr. Pablo’s DNA was found in the victim’s genitalia).

                                         -7-
