                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 12 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10156

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00386-RCC-
                                                 DTF-1
  v.

CHRISTOPHER BRYAN GARCIA,                        MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, District Judge, Presiding

                    Argued and Submitted November 8, 2012
                           San Francisco, California

Before: KLEINFELD and BERZON, Circuit Judges, and BENITEZ, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
            The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for Southern California, sitting by designation.
      A jury convicted Christopher Garcia of two counts of aggravated sexual

abuse. Garcia now challenges his conviction and sentence. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm his conviction, reverse his sentence, and

remand for resentencing.



                                           I.



       If jury instructions “fairly and adequately cover the issues presented,” the

district court “is given substantial latitude in tailoring” them. United States v.

Powell, 955 F.2d 1206, 1210 (9th Cir.1992) (internal quotation marks omitted).

Thus, “[a] district court’s formulation of the jury instruction is reviewed for abuse

of discretion.” Du v. Allstate Ins. Co., 681 F.3d 1118, 1122 (9th Cir.2012)

(internal quotation marks omitted). The jury instructions here fairly and

adequately covered the issues presented, and the district court did not abuse its

discretion in formulating them.



      The government’s DNA expert’s testimony recounting her reviewer’s

evaluation of her work was admissible under Rule 703 to assist the jury in

evaluating her expert opinion. The probative value of the evidence for that purpose


                                           2
substantially outweighed any prejudicial effect. Fed. R. Evid. 703. We assume

without deciding that the introduction of this testimony violated the Confrontation

Clause. Any such violation was harmless error.



       The prosecutor’s comments during closing argument did not deprive Garcia

of due process or his right to effective assistance of counsel because any

improprieties were not so gross as probably to prejudice him. United States v.

Navarro, 608 F.3d 529, 535-36 (9th Cir. 2010) (“[T]he trial judge has broad

discretion in controlling closing argument,” and “improprieties in counsel’s

arguments to the jury do not constitute reversible error unless they are so gross as

probably to prejudice the defendant, and the prejudice has not been neutralized by

the trial judge.”).



       The district court did not err when it denied Garcia’s request to inform the

jury of the mandatory minimum sentence. We have repeatedly held that district

judges should not instruct juries on the sentencing consequences of a verdict when

the juries have no role in fixing punishment. See, e.g., United States v. Frank, 956

F.2d 872, 880–82 (9th Cir.1991).




                                          3
      Because we hold that there was no error committed by the district court,

Garcia’s theory of cumulative error necessarily fails. We affirm Garcia’s

conviction.



                                           II.



      Garcia argues that there was insufficient evidence to support his sentence

enhancement under Guideline § 4B1.5(b)(1) for a pattern of prohibited sexual

conduct. “The factual findings underlying a district court’s sentence are reviewed

for clear error.” United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011). “We

review a district court’s determination of the reliability of evidence used at

sentencing for an abuse of discretion.” United States v. Felix, 561 F.3d 1036, 1040

(9th Cir. 2009).



      Under the Sentencing Guidelines, “[i]n resolving any dispute concerning a

factor important to the sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability

to support its probable accuracy.” U.S.S.G. § 6A1.3. Additionally, due process


                                           4
requires that “some minimal indicia of reliability accompany a hearsay statement”

at sentencing. United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993); see also

United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995) (“While hearsay

statements may be considered at sentencing, due process requires that such

statements be corroborated by extrinsic evidence.”).



      At Garcia’s sentencing hearing, the government argued that it had provided

clear and convincing evidence that Garcia had committed prohibited sexual

conduct on at least one other occasion. The government argues that the applicable

burden of proof was a preponderance of the evidence, not clear and convincing

evidence. The district court did not specify what standard it was applying. We

need not decide which standard applies, because the evidence was insufficient

under either standard.



      The government’s evidence of prior prohibited sexual conduct consisted of

transcripts of out-of-court interviews with two of the victim’s siblings. The

siblings were not under oath, and were not subject to cross-examination. Their

hearsay statements were not corroborated by any extrinsic evidence. The

government initially claimed in its briefs that the district court had watched videos


                                          5
of the interviews, but later conceded that this was not the case. The district court

did not have any video or audiotape of the interviews, so it could not assess the

siblings’ demeanor during their interviews.



      The government also claimed that the interviews were conducted by Nicole

Satterwhite, a “trained forensic interviewer” who testified at trial. However, the

transcripts indicate that the victim’s sister was actually interviewed by “Ms.

Wynonna.” There is no evidence in the record about Ms. Wynonna or her training.



      The content of the interview transcripts also reveals their unreliability.

The victim’s brother was mentally challenged, as the transcript shows. His

interview transcript suggests that he was often confused. The victim’s sister’s

answers reflect uncertainty and perhaps leading by the interviewer. Moreover, the

victim’s sister described events that supposedly occurred nine or ten year before the

interview, when she was eight or nine, and Garcia would have been only 11 or 12

years old. It is questionable whether conduct involving an 11 year old even has a

bearing on his proclivity for sex crimes as an adult or amounts to relevant

information.




                                           6
         The interview transcripts lacked sufficient indicia of reliability. The

government failed to prove, even by a preponderance of the evidence, that Garcia

had committed at least one other occasion of prohibited sexual conduct. We

therefore vacate the sentence and remand for resentencing. Garcia’s other

arguments with respect to his sentence either need not be reached or plainly lack

merit.



Conviction AFFIRMED; Sentence VACATED and REMANDED for

resentencing.




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