                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0139n.06

                                           No. 17-1552

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                                                   FILED
                                                                             Mar 15, 2018
                                                     )
                                                                         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )      On Appeal from the United States
                                                     )      District Court for the Eastern District
MARK JOHN VASQUEZ, JR.,                              )      of Michigan
                                                     )
       Defendant-Appellant.                          )
                                                     )
_________________________________/

BEFORE: GUY, SUTTON, and COOK, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Defendant Mark John Vasquez, Jr., an Indian

tribal resident, was indicted and convicted by a jury of assault of a dating or intimate partner by

strangling or attempting to strangle, and domestic assault by a habitual offender. On appeal,

defendant challenges the sufficiency of the evidence, the testimony of the government’s expert

witness, and the reasonableness of his sentence. After considering the issues, we find no error

requiring reversal, and we affirm.

                                                I.

       Defendant and his victim, Marcella Jones, began living together in 2010 and married in

2012. They divorced in 2014 but resumed their relationship in an attempt to reconcile. Their

tumultuous relationship was characterized by drinking, partying, and argument.
Case No. 17-1552, United States v. Vazquez


       On March 11, 2016, Jones went to defendant’s house, located on the Isabella reservation

in Isabella County, Michigan, intending to confront him about a suspected infidelity. The two

argued, and defendant concedes that he put Jones “in a tight, painful bear hug for a few seconds.”

After some more arguing, the conflict again became physical: according to defendant’s own

version of the facts, Jones “characterized the altercation [as] mutual but allowed that [defendant]

choked her twice. She refused to characterize the incident as strangling because she did not feel

that [defendant] intended to do extreme damage or harm.”           At trial, Jones admitted that

defendant had both hands around her neck, which affected her breathing “a little bit.”

A responding police officer photographed marks on Jones’s neck, but Jones later testified that

she did not think they were from the fight.

       Throughout Jones’s testimony, she took responsibility for initiating and maintaining the

fight with defendant, attributed her injuries to other events, recanted certain accusations she had

made to the police about defendant, and stated that she did not want defendant to go to prison.

She explained that she only called the police because she thought defendant was making a

criminal complaint against her; if she had known that defendant had not actually filed a

complaint, she would never have called the police. She stated that she did not believe that

defendant had technically strangled her by putting his hands around her neck and restricting her

breathing.

       After Jones testified, the responding police officer, Shane Waskevich, testified. He stated

that, contrary to Jones’s testimony at trial, she had told him that defendant did cause the marks

on her neck, and Waskevich took some photos of the injuries. In response to that testimony,

defense counsel objected, citing Jones’s testimony at trial that the photos and injuries were not

caused by defendant. The trial court overruled the objection, reasoning that the evidence was



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based on an adequate foundation, and defense counsel was free to argue this fact question to the

jury.

        Because of Jones’s reluctance to implicate defendant, the government called Holly

Rosen, a social worker at Michigan State University and the director of a domestic violence

program there.1 Rosen had never met Jones; rather, she testified generally about characteristics

and behaviors typical of victims of domestic violence. Rosen testified that it is typical for a

victim to blame herself and/or minimize what she experienced. Victims tend to lie to cover up

the abuse. They do not typically view themselves as victims and might assert that they are

unafraid of their assailant. Rosen also testified that it is typical for an abusive relationship to be

punctuated by “good times,” which makes it more difficult for the victim to leave the

relationship. Defendant never objected to Rosen’s testimony at trial.

        The jury found defendant guilty of assault of a dating or intimate partner by strangling or

attempting to strangle, and domestic assault by a habitual offender. Defendant’s guideline range

was 51-63 months, and the district court sentenced him to a below-guideline range of 46 months

of imprisonment.

                                                 II.

        A. Rosen’s Expert Testimony

        A district court’s evidentiary rulings are reviewed for an abuse of discretion. United

States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). Because defendant did not object to

Rosen’s testimony at trial, however, defendant’s claims are reviewable only for plain error.

United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010). To prevail under this standard of

review, defendant must establish “(1) error, (2) that was obvious or clear, (3) that affected his

1
 Defendant does not challenge Rosen’s qualifications as an expert. He challenges the content of
her testimony.
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substantial rights, and (4) affected the fairness, integrity, or public reputation of his judicial

proceedings.” Id.

       In pertinent part, Federal Rule of Evidence 702 states that expert testimony is permitted if

“the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue.”        Defendant argues that Rosen’s

testimony did not help the jury because Rosen “attempt[ed] to apply a general observation about

a larger group to particular individuals whose conduct is in question,” i.e., Jones. Def. Br. at 19

(quoting Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819, at *11 (N.D.

Tex. Mar. 8, 2017)). The government, on the other hand, claims that Rosen’s testimony did

assist the jury in understanding and evaluating Jones’s seemingly inconsistent actions and

testimony.

       United States v. LaVictor, 848 F.3d 428 (6th Cir. 2017), is directly on point and resolves

this issue in the government’s favor. In LaVictor, a victim of domestic violence and sexual

assault implicated the defendant while she was in the hospital, but at the defendant’s detention

hearing and at trial, the victim testified that she consented to the defendant’s behavior,

disavowed her previous statements to police, and insisted that her complaints were the result of

confusion and pressure from hospital workers. Over the defendant’s objection, the district court

permitted the government’s expert witness to testify about the dynamics of victim recantation in

the context of domestic violence. We affirmed. As here, the defendant had argued that such

testimony was not helpful to the jury, but we reasoned that “[t]here is a factual issue in

dispute — whether or not [the victim] consented. [The expert]’s proposed testimony provides

the jury with an explanation for the contradictory evidence in the record. . . . Therefore, we

believe that such testimony is highly probative and helpful to the jury.” Id. at 442. Nothing



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distinguishes LaVictor from the instant case. LaVictor is therefore controlling, and the district

court did not commit an obvious or clear error.

        Defendant attempts to distinguish his case from LaVictor using United States v. LeBlanc,

45 F. App’x 393 (6th Cir. 2002). In that case, the defendant—who was accused of child sexual

abuse—proffered the testimony of a psychologist who would have explained how “the memories

of young children . . . can readily become distorted and contaminated because of unintentional

inadvertent adult influence” during forensic interviews. Id. at 398. We affirmed that such

testimony was inadmissible, however, because the defense could not point “to a single instance

in which [the child victim] was supposedly subjected to allegedly coercive or suggestive

questioning techniques.” Id. at 400-01. In other words, the proffered expert testimony was not

“sufficiently tied to the facts of the case,” and, therefore, it would not help the trier of fact. Id. at

400 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).

        Defendant argues that Rosen’s testimony is like that of the witness in LeBlanc because,

“akin to what occurred in LeBlanc, the record in the instant case lacked sufficient evidence that

Ms. Jones had previously been the victim of domestic abuse.” By contrast, defendant argues that

in LaVictor the expert’s testimony was only relevant because the victim’s relationship with the

defendant “was characterized by multiple instances of prior domestic abuse.” This argument

fails. Rosen’s testimony was made relevant by Jones’s conflicting testimony in conjunction with

the evidence of the 2016 incident—not by Jones’s history of victimhood. The same was true in

LaVictor. 848 F.3d at 442 (“[The expert]’s proposed testimony provides the jury with an

explanation for the contradictory evidence in the record.”). Nothing in LaVictor requires the

government to establish a pattern of domestic violence between defendant and Jones. Rather,

under LaVictor and LeBlanc, the expert’s testimony must bear some relevance to the proponent’s



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theory, which in turn must have some evidentiary support. In LeBlanc, the theory of coercive

interviewing had no evidentiary support, so expert testimony on that topic would not have been

helpful to the jury. In LaVictor and the instant case, however, the expert testimony was helpful

to the jury because it would help jurors make sense of a victim’s contradictory testimony.

        Defendant also asserts that, applying Federal Rule of Evidence 704(b), Rosen

impermissibly testified on Jones’s credibility and thus invaded the exclusive province of the jury.

Def. Br. at 22-23 (quoting United States v. Cecil, 836 F.2d 1431, 1441 (4th Cir. 1988) (“[A]

psychiatrist may not testify to the credibility of a witness; that issue is one for the jury.”)). This

issue, too, is controlled by LaVictor, in which the defendant argued that “generic” testimony on

victim recantation violates the rule that “testimony that aides the jury in weighing a victim’s

credibility is improper.” 848 F.3d at 442. We held that domestic violence presents a special

case:   “[T]he dual phenomenon of battered woman’s syndrome and victim recantation are

beyond the knowledge of an average juror.” Id. Accordingly, Rosen’s testimony did not usurp

the jury’s factfinding role, and the district court did not clearly err.

        B. Sufficiency of the Evidence

        We review the sufficiency of the evidence for a conviction “in the light most favorable to

the prosecution” to determine whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). Circumstantial evidence, if

“substantial and competent,” may sustain a conviction even if no direct evidence exists. United

States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002) (quoting United States v. Humphrey,

279 F.3d 372, 378 (6th Cir. 2002)).




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       To convict defendant of assault of an intimate or dating partner by strangling or

attempted strangling in violation of 18 U.S.C. § 113(a)(8), the jury had to find, in part, that

“defendant assaulted [the victim] by strangling or attempting to strangle her.”          18 U.S.C.

§ 113(b)(4) defines “strangling” as “intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of a person by applying pressure to the throat or neck,

regardless if that conduct results in any visible injury or whether there is any intent to kill or

protractedly injure the victim.” To convict Vasquez of domestic assault by a habitual offender,

the jury had to find, in part, that “defendant committed a domestic assault against [Jones].”

Defendant does not challenge the sufficiency of the evidence as it relates to any of the unlisted

elements of these two crimes.

       Defendant argues that no rational jury could have convicted him in light of the

inconsistencies in Jones’s testimony and the fact that Officer Waskevich offered hearsay

testimony as to the conversations he had with Jones in the aftermath of the 2016 incident.2

       The government does not dispute whether Waskevich’s testimony was hearsay.

Regardless, defendant’s sufficiency claim would fail even if Waskevich’s alleged hearsay

testimony is not considered. Even at her most reluctant, Jones offered testimony on which

defendant could be convicted. She testified that defendant had both hands around her neck,

which affected her breathing. This satisfies both the “strangulation” element in 18 U.S.C.

§ 113(a)(8) and the “domestic assault” element in 18 U.S.C. § 117.           The domestic assault

conviction is further supported by the evidence that defendant “bear hugged” Jones, which

caused her pain. Although Jones attempted to recant certain of her accusations, downplayed

defendant’s intent, and took responsibility for the fight, her credibility in this regard was a fact

2
  Defendant also asserts that his sufficiency concern “is magnified when one includes the
testimony of Ms. Rosen . . . .” As we concluded supra, however, Rosen’s testimony was proper.
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question for the jury. And “in cases in which we assess the sufficiency of the evidence, we do

not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that

of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994) (citing United States v.

Evans, 883 F.2d 496, 501 (6th Cir. 1989)).

       C. Reasonableness of Sentence

       Finally, defendant challenges the procedural and substantive reasonableness of his

sentence. Procedural error includes “failing to consider the [18 U.S.C.] § 3553(a) factors . . . or

failing to adequately explain the chosen sentence.” United States v. Curry, 536 F.3d 571, 573

(6th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “For a sentence to be

substantively reasonable, ‘it must be proportionate to the seriousness of the circumstances of the

offense and offender, and sufficient but not greater than necessary, to comply with the purposes’

of § 3553(a).” Id. (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)). We

review the reasonableness of a district court’s sentence for an abuse of discretion. Id. (citing

Gall, 552 U.S. at 50). “If the sentence is within the Guidelines range, the appellate court may,

but is not required to, apply a presumption of reasonableness.” Gall, 552 U.S. at 51 (citing Rita

v. United States, 551 U.S. 338, 347 (2007)). Showing that a below-guidelines sentence is

unreasonable “is even more demanding.” Curry, 536 F.3d at 573 (citing United States v. Bailey,

264 F. App’x 480 (6th Cir. 2008)).

       Regarding the substantive reasonableness of his sentence, defendant argues that the

district court gave unreasonably little weight to Jones’s request for leniency, his qualities as a

father, and his struggle with alcoholism. He concedes that the district court credited his and

Jones’s testimony to that effect, but asserts that “it does not appear that [the judge] adequately

considered the testimony of Ms. Jones who spoke at length in mitigation of sentencing.”



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       The court gave adequate consideration to Jones’s request for leniency. After hearing

from both sides at sentencing, the court immediately acknowledged Jones’s allocution. The

court also addressed the subjects of her testimony, including defendant’s qualities as a father and

his alcoholism.    Defendant’s underdeveloped claim is insufficient to overcome the strong

presumption of reasonableness that we apply to his below-guidelines sentence.                This is

particularly true in light of evidence that Jones’s advocacy for defendant in the district court was

the result of their abusive relationship.

       Regarding the procedural component of his sentencing claim, defendant asserts, simply,

that “it does not appear [the § 3553(a) factors] were considered individually.” The district court

did not abuse its discretion by failing to discuss the § 3553(a) factors to defendant’s satisfaction.

“[A] district court must offer ‘only a general statement of the reasons for its imposition of the

particular sentence.’” United States v. Ferguson, 518 F. App’x 458, 470 (6th Cir. 2013) (quoting

United States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011)). We have held that

               a district court makes an adequate statement of reasons under
               § 3553(c)(1) by tailoring its comments to show the sentence was
               consistent with the sentencing factors of § 3553(a). No specific
               language is required when stating the reasons for a sentence, as a
               district court simply must demonstrate that it was “mindful” of the
               appropriate factors when imposing the sentence.

Id. at 470-71 (citing United States v. Parrado, 911 F.2d 1567, 1572-73 (11th Cir. 1990)).

       The presentence investigation report discusses the factors individually, and in detail, and

the judge indicated several times that he read that report and invited the parties to object to it.

More importantly, contrary to defendant’s contention, the judge specifically delineated the

§ 3553(a) factors that he found most important to his sentence, including his decision to

downwardly depart. He discussed the defendant’s history and characteristics, both positive and

negative, as well as the characteristics of the offense. He considered the need to deter future

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conduct and to protect the public, drawing a link between defendant’s substance abuse and

criminal activity; he then considered the most effective correctional treatment, asking defendant

questions about how he would change his behavior to stay sober and specifying that defendant be

remanded to a facility with pertinent treatment programs. This is sufficient for us to conclude

that the district court was mindful of the § 3553(a) factors and did not abuse its discretion during

sentencing.

       AFFIRMED.




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