                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0125p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                 ┐
                                     Plaintiff-Appellee,   │
                                                           │
                                                           >      No. 16-3548
        v.                                                 │
                                                           │
                                                           │
 IRAEPHRAIM X. UNDERWOOD,                                  │
                                  Defendant-Appellant.     │
                                                           ┘

                        Appeal from the United States District Court for
                         the Northern District of Ohio at Youngstown.
                    No. 4:15-cr-00096—Patricia A. Gaughan, District Judge.

                                     Argued: April 27, 2017

                                Decided and Filed: June 13, 2017

                      Before: GUY, SILER, and DONALD, Circuit Judges.
                                    _________________

                                           COUNSEL

ARGUED: Catherine J. Adinaro, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland,
Ohio, for Appellant. Michael A. Sullivan, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee. ON BRIEF: Catherine J. Adinaro, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Benedict S. Gullo, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       SILER, Circuit Judge. Iraephraim Underwood appeals his conviction of one count of
crossing a state line with intent to engage in a sexual act with his step-granddaughter, a minor, in
violation of 18 U.S.C. § 2241(c), and one count of transporting his step-granddaughter in
 No. 16-3548                                  United States v. Underwood                      Page 2


interstate commerce with the intent that such person engage in unlawful sexual activity, in
violation of 18 U.S.C. § 2423(a). On appeal, Underwood argues that the district court erred in
allowing his wife, his daughter, and a sexual assault nurse to testify at his trial. He argues that by
allowing his wife to testify, the district court violated both the confidential marital
communications privilege and the adverse spousal testimony privilege. He also argues that the
district court erred in allowing his daughter and the sexual assault nurse to testify in violation of
Federal Rules of Evidence 403 and 803(4). We affirm because the district court did not err in
any of these evidentiary rulings.

                          FACTUAL AND PROCEDURAL BACKGROUND

       In 2014, Underwood’s step-granddaughter (“Jane”)1 told her mother that Underwood had
sex with her in August 2014 when the two were on a trip to Michigan. According to Jane, she
and her cousin (“John”)2 had gone on a work trip with Underwood in his semi-truck. Jane, John,
and Underwood first went to Pennsylvania. After Underwood took John back home, Underwood
took Jane to Michigan with him.

       According to Jane, when they arrived in Michigan, Underwood sexually assaulted her.
After learning of the allegations, Jane’s mother took Jane to the local hospital and then to the
Children’s Advocacy Center. John also accused Underwood of sexual misconduct and was taken
to the Advocacy Center.

       In 2015, a three count superseding indictment was filed against Underwood.                The
indictment charged him with one count of crossing state lines with the intent to engage in a
sexual act with Jane, and two counts of transporting a person, under the age of eighteen, in
interstate commerce, with the intent that such person engage in unlawful sexual activity (one
count for each Jane and John).

       In 2016, Underwood was tried for the indicted charges. During the trial, the government
presented three witnesses that are the subject of this appeal.             It called Underwood’s wife
(“Cora”) to testify. Over a marital communications privilege objection, Cora testified that she
       1
           Jane is a fictitious name to protect the minor child.
       2
           Also a fictitious name to protect the minor.
 No. 16-3548                          United States v. Underwood                            Page 3


became increasingly concerned about Underwood’s favoritism toward Jane. Cora also testified
about an incident when she left Underwood and Jane at home alone and found that Underwood
had changed their bed linens. Finally, Cora testified about text messages and four voicemails
that she received from Underwood. In the text messages, Underwood denied sexually assaulting
John, but he did not deny assaulting Jane. In the voicemails, Underwood apologized for not
being a perfect man.

       The government also called Underwood’s adult daughter and Jane’s sexual assault
examiner Nurse Gorsuch.       Underwood’s daughter testified about being sexually abused by
Underwood in 1992—an incident for which Underwood pleaded guilty to Forcible Sexual
Abuse. Nurse Gorsuch testified about her interview with Jane concerning the sexual assault.

       The jury convicted Underwood of aggravated sexual abuse of a child and transporting a
minor as it related to Jane and acquitted him of the count relating to John. The district court
sentenced Underwood to life on both counts to be served concurrently.

                                          DISCUSSION

I.     Spousal Testimony

       a.      Standard of Review

       We review a district court’s admission or exclusion of evidence for an abuse of
discretion. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010). The abuse of
discretion standard also applies to a district court’s evidentiary rulings made in the context of the
marital privilege. See United States v. Flemming, 658 F. App’x 777, 787 (6th Cir. 2016) (citing
United States v. Morales, 687 F.3d 697, 701–02 (6th Cir. 2012)). However, the determination of
whether a common law privilege exists and the contours of that privilege are reviewed de novo.
See United States v. Hayes, 227 F.3d 578, 581 (6th Cir. 2000).

       A district court’s finding of a waiver of an evidentiary privilege is reviewed de novo. In
re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 253–54 (6th Cir. 1996).
 No. 16-3548                        United States v. Underwood                            Page 4


       b.      Confidential Marital Communications Privilege

       Underwood argues that the district court erred in admitting Cora’s testimony in violation
of the confidential marital communications privilege.

       There are two types of marital privilege. United States v. Sims, 755 F.2d 1239, 1240 (6th
Cir. 1985). The first privilege is the adverse spousal testimony privilege. Id. “[T]he witness-
spouse alone has a privilege to refuse to testify adversely,” and the witness-spouse may be
neither compelled to testify nor foreclosed from testifying under the privilege. Id. (quoting
Trammel v. United States, 445 U.S. 40, 53 (1980)).        The second type of privilege is the
confidential marital communications privilege. Id. at 1241. For this privilege, the defendant-
spouse retains the privilege to foreclose testimony            regarding   confidential   marital
communications. Id. To successfully assert the confidential marital communications privilege,
three requirements must be met: (1) at the time of the communication there must have been a
marriage recognized as valid by state law; (2) the privilege applies only to utterances or
expressions intended by one spouse to convey a message to the other; and (3) the communication
must be made in confidence. See United States v. Porter, 986 F.2d 1014 (6th Cir. 1993).

       While neither party disputes that all three requirements have been met in this case, that
does not conclude the inquiry. Federal Rule of Evidence 501 states that “common law—as
interpreted by the United States courts in the light of reason and experience—governs a claim of
privilege.” In Trammel, the Supreme Court noted that the intention of Congress was “not to
freeze the law of privilege” but to give the courts flexibility to make changes on a case-by-case
basis. 445 U.S. at 47. Using this guidance, federal courts have created various exceptions to
allow admission of spousal testimony over a defendant’s objection. For example, we have
recognized that confidential marital communications are unprotected when they pertain to joint
criminal activity, see Sims, 755 F.2d at 1243, and when the parties are permanently separated but
still legally married, Porter, 986 F.2d at 1019. Other federal courts have also created an
exception to the privilege in instances in which the spouse commits an offense against the other
spouse. See Trammel, 445 U.S. at 46, n.7; Wyatt v. United States, 362 U.S. 525, 529 (1960).
 No. 16-3548                              United States v. Underwood                                   Page 5


        Most significant to this case, several circuit courts have recognized an exception to the
communications privilege where the communications concern allegations of child abuse (“child-
abuse exception”). See United States v. Breton, 740 F.3d 1, 12 (1st Cir. 2014) (extending the
offense-committed-against-the-spouse exception to the marital communications privilege for an
offense against a child of either spouse to promote marital and family harmony); United States v.
Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997) (upholding admission of spousal testimony and
finding “no significant difference, as a policy matter, between a crime against a child of the
married couple, against a stepchild living in the home or, as here, against an eleven-year-old
relative visiting in the home” because “child abuse is a horrendous crime”); United States v.
White, 974 F.2d 1135, 1138 (9th Cir. 1992) (upholding admission of spousal testimony because
exclusion of such testimony is inconsistent with public policy concerns to protect a spouse or the
spouse’s children)3; United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977) (recognizing a
child-abuse exception to marital communications privilege); United States v. Allery, 526 F.2d
1362, 1367 (8th Cir. 1975) (communications unprotected since child abuse allegations involved
spouse’s child). In addition to the federal circuit courts, state courts have also accepted the child-
abuse exception in varying degrees. Compare Ludwig v. State, 931 S.W.2d 239, 244 (Tex. Crim.
App. 1996) (en banc) (finding the state evidentiary rule to establish an exception to marital
communications privilege in any crime against any minor child), with Johnson v. United States,
616 A.2d 1216, 1219–25 (D.C. App. 1992) (establishing exception for crimes against children of
either spouse under the common law).

        After a thorough review of cases applying a child-abuse exception to the marital
communication privilege, we find Breton and Bahe the most persuasive using “reason and
experience” to guide a case-by-case analysis. Trammel, 445 U.S. at 47. In Breton, the First
Circuit provided an extensive rationale, first enunciated in Allery, for why the “offense against
spouse” exception should extend to an offense against a child of either spouse. 740 F.3d at 10–
11. First, a crime against a spouse’s child, like a crime against a spouse, profanes the deep bond
of trust and love between marital partners and disrupts family harmony. Id. at 11. Second, there
is a greater-than-usual need for critical, parental testimony in prosecutions for crimes against

        3
          The Ninth Circuit has refused to extend the child-abuse exception to a grandchild that the court deemed
was not the “functional equivalent” of a child. See United States v. Banks, 556 F.3d 967, 976 (9th Cir. 2009).
 No. 16-3548                                United States v. Underwood                                     Page 6


children, since “[t]ragically and perversely, child abuse occurs most often in the home at the
hands of a parent or parent-substitute.” Id. Third, “like all privileges, the marital privileges
hamper the truth-seeking process and must be interpreted narrowly.” Id. Fourth, and finally,
“there is overwhelming state legislative and judicial authority for the proposition that a crime
against a spouse’s child renders the marital communications privilege inapplicable.” Id.; see
also Emily C. Aldridge, To Catch a Predator or to Save His Marriage: Advocating for an
Expansive Child Abuse Exception to the Marital Privileges in Federal Courts, 78 Fordham L.
Rev. 1761, 1784–87 (2010) (providing a detailed list of state laws codifying a child-abuse
exception to the marital communications privilege).

        In Bahe, the Tenth Circuit announced its adoption of the child-abuse exception to the
marital communications privilege, stating “[i]t would be unconscionable to permit a privilege
grounded on promoting communications of trust and love between marriage partners to prevent a
properly outraged spouse with knowledge from testifying against the perpetrator of such a
crime.” 128 F.3d at 1446. Significantly, the Bahe court extended the child-abuse exception to
abuse of a relative visiting the home and not a child of either spouse. The court noted that it saw
“no significant difference, as a policy matter, between a crime against a child of the married
couple, against a stepchild living in the home or, as here, against an eleven-year-old relative
visiting in the home” because “[c]hild abuse is a horrendous crime.” Id.

        Using Breton’s and Bahe’s reasoning to guide our fact-intensive inquiry, the child-abuse
exception allows Cora’s testimony in this case.4 First, Underwood’s sexual abuse of Cora’s
granddaughter “profane[d] the deep bond of trust and love between” Underwood and Cora and
disrupted family harmony.5 Breton, 740 F.3d at 11. In the evidence at issue, Underwood tacitly
admitted to raping Cora’s granddaughter.                Second, the evidence showed that Underwood
sexually abused Cora’s granddaughter when he was the parental-substitute. Id. (“Tragically and
perversely, child abuse occurs most often in the home at the hands of a parent or parent-


        4
          The government would have us adopt a far-reaching child abuse exception, but we decline to do so here.
Whether the exception exists requires a case-by-case analysis, see Trammel, 445 U.S. at 47; thus, this holding is not
meant to provide a blanket exception to all future child abuse cases.
        5
         Although Underwood holds this privilege, we view the facts from Cora’s perspective because the child-
abuse exception is an extension of the crime-against-the-spouse exception.
 No. 16-3548                               United States v. Underwood                                    Page 7


substitute.”). This was not a case where Underwood was an “occasional caregiver.” See Banks,
556 F.3d at 977. Instead, Cora’s granddaughter regularly went on trips with Underwood to
Pennsylvania and Michigan in his truck. During these trips, Cora’s granddaughter was in the
sole care and custody of Underwood. Third, we, like the court in Bahe, see “no significant
difference, as a policy matter” whether the crime was committed against Cora’s daughter or
granddaughter. 128 F.3d at 1446. Just like the spouse’s own child, the granddaughter would
serve as a proxy for Cora’s injury. Finally, we see no significant difference that this crime did
not occur in Underwood’s home, but rather occurred in his “sleeper truck.”6 Underwood’s
“sleeper truck” is the functional equivalent of his home as it has sufficient living quarters and
Underwood would stay in the truck during his overnight trips.

        The district court did not abuse its discretion in allowing Cora’s testimony in this case.

        c.       Testimonial Privilege

        Underwood argues that, even if the child-abuse exception applies, the district court
violated due process when it failed to affirmatively find that Cora knew she had a voluntary right
to refuse to testify.

        Underwood cannot raise this claim. The witness-spouse alone has a privilege to refuse to
testify adversely. Trammel v. United States, 445 U.S. 40, 53 (1980). Therefore, Underwood
holds no right to the privilege and thus lacks standing to raise the issue on appeal. See United
States v. Anderson, 39 F.3d 331, 350 (D.C. Cir. 1994) (finding defendant-spouse without
standing to contest a district court’s decision to compel the spouse to testify) (vacated on other
grounds); United States v. Lofton, 957 F.2d 476, 477 n.1 (7th Cir. 1992) (holding that “Lofton
would have no standing to appeal the district court’s determination that his wife waived her
spousal testimonial privilege”); Grand Jury Subpoena of Ford v. United States, 756 F.2d 249,
255 (2d Cir. 1985) (“[Wife] argues that, where the witness-spouse invokes the privilege and the



        6
          At oral argument, Underwood’s counsel argued that this distinction was important because Cora was not
present during the child abuse. However, as opposing counsel correctly pointed out, this case concerns marital
communications, not direct evidence of the spouse’s witnessing the child abuse. Therefore, the fact that the spouse
was not present during the act is irrelevant.
 No. 16-3548                           United States v. Underwood                         Page 8


government attacks his exercise of it, the non-witness spouse must be allowed to intervene. This
argument is without merit . . . .”).

II.     Daughter’s Testimony

        a.      Standard of Review

        We review a district court’s admission or exclusion of evidence for abuse of discretion.
United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010). The same standard applies to a
district court’s admission of prior acts of child molestation. United States v. Trepanier, 576 F.
App’x 531, 534 (6th Cir. 2014).

        b.      Federal Rule of Evidence 414

        Underwood argues that the district court erred in permitting his daughter’s testimony
about conduct that occurred over twenty years prior to the trial. According to Underwood, the
prejudicial value of this testimony far exceeded the probative value in violation of Federal Rule
of Evidence 403.

        In 1994, Congress enacted Federal Rule of Evidence 414 as part of the Violent Crime
Control and Law Enforcement Act. PL 103-322, § 320935(a), 108 Stat. 1796. Rule 414(a)
states, “[i]n a criminal case in which a defendant is accused of child molestation, the court may
admit evidence that the defendant committed any other child molestation. The evidence may be
considered on any matter to which it is relevant.” Rule 414 “create[s] an exception to the general
ban on propensity evidence contained in Rule 404(b).” United States v. Seymour, 468 F.3d 378,
384–85 (6th Cir. 2006).        This relevant evidence of a defendant’s other crimes of child
molestation is admissible unless its probative value is substantially outweighed by the danger of
unfair prejudice. See United States v. Sanchez, 440 F. App’x 436, 439–40 (6th Cir. 2011).

        In this case, Underwood argues that the testimony should not have been admitted because
of the timeframe between the Rule 414 conduct and the trial. This argument is unpersuasive. In
United States v. Gabe, the Eighth Circuit allowed the admission of a twenty-year-old uncharged
child molestation act under Rule 414. 237 F.3d 954, 959–60 (8th Cir. 2001). In doing so, the
court noted that “it is reasonable to assume that a victim of child abuse is not likely to forget
 No. 16-3548                          United States v. Underwood                           Page 9


such a traumatic event,” thus eliminating the concern of reliability issues. Id. at 960. This
opinion is directly in line with the legislative intent of the Violent Crime Control and Law
Enforcement Act, which promoted Rule 414. During its introduction, the Principal House
Sponsor noted, “No time limit is imposed on the uncharged offense for which evidence may be
admitted.” 140 Cong. Rec. H8968—01, H8991 (daily ed. Aug. 21, 1994) (emphasis added).

         Next, Underwood argues that his daughter’s testimony about his sexually assaulting her
more than twenty years prior lacks any probative value because his theory of the case only
challenged whether he had the intent to engage in illicit sexual conduct when he crossed state
lines.   Although Underwood’s opening statement suggested that he was only challenging
whether he possessed the requisite intent and not whether he committed the sexual act itself, the
district court did not abuse its discretion because it would not know until the closing argument if
this was truly the “theory of the case.” As with any criminal case, the government always has
the burden of proof. Therefore, if the government failed to carry this burden, the defendant
could have changed his theory at closing argument.

         Furthermore, we have already held that if the charged conduct and the prior Rule 414
conduct are “sufficiently similar,” the prejudicial effect of such evidence is outweighed by its
probative value. See Sanchez, 440 F. App’x at 438–40. In this case, there were numerous
similarities between the sexual assaults of Underwood’s daughter and step-granddaughter: both
were juveniles (daughter was ten and step-granddaughter was between eleven and twelve), both
were penile penetrated by Underwood, both had a familial relationship, and both occurred when
Underwood was able to isolate the individuals alone at a time of vulnerability.

         Thus, the district court properly admitted the daughter’s testimony under Rule 414.

III.     Nurse Gorsuch’s Testimony

         a.     Standard of Review

         When a party does not object to a witness’s testimony, we review the district court’s
admission of that testimony for plain error. United States v. Kappell, 418 F.3d 550, 554 (6th Cir.
2005). “To show plain error, a defendant must show (1) error (2) that was obvious or clear, (3)
 No. 16-3548                          United States v. Underwood                             Page 10


that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Wallace, 597 F.3d 794, 802 (6th Cir.
2010) (citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc)). A
finding of plain error is warranted only in “exceptional circumstances,” that is, “where the error
is so plain that the trial judge . . . [was] derelict in countenancing it.” Vonner, 516 F.3d at 386.

       b.      Analysis

       Underwood argues that the district court erred in allowing Nurse Gorsuch, Jane’s sexual
assault nurse examiner, to testify about inadmissible hearsay that only bolstered Jane’s own
testimony. In response, the government argues that the district court did not commit plain error
because Jane’s evaluation was undertaken “for the primary purpose of medical diagnosis.”
Kappell, 418 F.3d at 556–57.

       Under Federal Rule of Evidence 803(4), statements are admissible if they are made “for
the primary purpose of medical diagnosis, rather than for some other purpose, such as
determining whether to notify state authorities of suspected abuse, deciding whether a protective
order was necessary to ensure the children’s safety, or obtaining evidence.”             Id. (internal
citations omitted).

       At trial, the government asked Nurse Gorsuch to “generally give [the jury] an idea of
what [Nurse Gorsuch] knew about the allegations, based on the interview [with Jane].” In
response to that question, Nurse Gorsuch stated, “You’re asking me what Jane said about the
incident?” The government then replied, “Yeah, to the degree it helped you frame your exam. If
you could tell us what you learned.” Nurse Gorsuch then testified:

       Jane said that she was there because of concerns about her step-grandfather, Ira
       Underwood. She said that the last time anything happened was in around
       September, 2014. And she described an incident where she went with him on a
       semi truck. She and her cousin, [John], went bowling with him and then they went
       on the semi truck to Pennsylvania, then they came back and dropped [John] off at
       his home and Jane and Mr. Underwood went to Michigan. And she said he had to
       rest for two hours. So she got in the top bunk and was on the phone, and he got
       on the bottom bunk. She had to go to the restroom and they were stopped in a
       place where there was a cluster of stores, a gas station and a CVS and a Myers,
       and she came back from the restroom, and he was -- when she got in the truck, he
 No. 16-3548                          United States v. Underwood                           Page 11


       was naked. He pulled her into the lower bunk of the trunk [sic] and pulled off her
       jeans and underwear and then he put his penis in her vagina.

Nurse Gorsuch’s testimony also continued by stating that:

       And then she described a couple of other incidents. She said the first time
       anything happened, she was 10 or 11. She wasn’t sure exactly. And she was at her
       grandmother’s home, and grandmother asked her to go up to grandmother’s
       bedroom to get her watch. So she went up there, and Mr. Underwood came in the
       room, shut and locked the door, pushed her on the floor, and tried to put his penis
       in her vagina. She said that he couldn’t get it in there so he asked her not to tell.
       He said he would do -- give her anything she wanted if she wouldn’t tell.

Underwood argues that the majority of these statements had no bearing on the medical diagnosis
or treatment. Specifically, Underwood argues that the identification of the perpetrator was
irrelevant. See Gabe, 237 F.3d at 957–58 (“In general, a patient’s statement describing how an
injury occurred is pertinent to a physician’s diagnosis and treatment, but a statement identifying
the person who caused the injury would seldom, if ever, be sufficiently related.” (internal
quotation marks and citation omitted)). While it is true that the identification of the perpetrator
may usually not have any medical significance, such error is not plain in this case. For example,
Nurse Gorsuch may have wanted to ensure that the perpetrator was not present in the room so
that she could get a truthful evaluation without the child’s fearing future retaliation.

       Furthermore, the other statements that Underwood attacks—i.e., that they went bowling
before the incident and the truck was parked around a CVS—could also have medical
significance. For example, the distance it took Underwood to walk and get the “morning after
pill” could be significant to Nurse Gorsuch’s medical evaluation as it provides a timeframe
between the sexual assault and the subsequent medication that Jane took. Furthermore, Gorsuch
stated that she “absolutely” relies on the information she learns in the interview:

       Well, the information that the interviewer collected, and then I listen to, gives me
       guidance about what kind of tests I might need to do. Depending on what the
       child says, I may do blood tests or not. So that’s real [sic] important to know. It
       also gives me an idea of what to look for during the exam.

Therefore, we cannot find that the district court’s ruling was an “obvious or clear” error or that
the district court was “derelict in” its duties. Wallace, 597 F.3d at 802; Vonner, 516 F.3d at 386.
 No. 16-3548                         United States v. Underwood                        Page 12


IV.    Cumulative Error

       In his final challenge, Underwood argues that cumulative error should result in his
receiving a new trial. To prevail under cumulative-error analysis, a defendant “must show that
the combined effect of individually harmless errors was so prejudicial as to render his trial
fundamentally unfair.” United States v. Warman, 578 F.3d 320, 349 n.4 (6th Cir. 2009) (citation
omitted). Because cumulative error analysis examines only actual errors, “the accumulation of
non-errors cannot collectively amount to a violation of due process.” Campbell v. United States,
364 F.3d 727, 736 (6th Cir. 2004) (internal quotation and citation omitted).

       AFFIRMED.
