                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            MAY 18 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-30039

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-05305-RBL-1
 v.

LEROY CHARLES,                                   MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                        Argued and Submitted May 8, 2017
                               Seattle, Washington

Before: BEA and N.R. SMITH, Circuit Judges, and HAYES,** District Judge.

      Challenging several of the district court’s evidentiary rulings, Leroy Charles

appeals his jury conviction for five counts of aggravated sexual abuse of a minor.

We review preserved evidentiary rulings for abuse of discretion and will “uphold

them unless they are ‘illogical, implausible, or without support in inferences that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
may be drawn from the facts in the record.’” United States v. Gadson, 763 F.3d

1189, 1199 (9th Cir. 2014) (quoting United States v. Hinkson, 585 F.3d 1247, 1263

(9th Cir. 2009) (en banc)). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1.     The district court did not abuse its discretion by allowing testimony

from the alleged victims of uncharged sexual assaults. The district court properly

considered the following non-exhaustive list of factors and found them to favor

admission:

      (1) “the similarity of the prior acts to the acts charged,” (2) the
      “closeness in time of the prior acts to the acts charged,” (3) “the
      frequency of the prior acts,” (4) the “presence or lack of intervening
      circumstances,” and (5) “the necessity of the evidence beyond the
      testimonies already offered at trial.”

United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (quoting Rudy-

Glanzer ex rel. Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000)).

      The prior acts were sufficiently similar to the charged conduct. With respect

to all of the assaults, the victims were Charles’s young relatives, and Charles used

his familial relationship to gain proximity and access to each of the victims. See id.

at 1022–23, 1028. He also exerted physical control over nearly all of the victims to

accomplish the attacks and used threats to prevent them from reporting the attacks.

The district court’s finding that the assault on one of the victims of uncharged

conduct was not sufficiently similar further indicates that the court carefully


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considered each prior attack independently. See United States v. Cherer, 513 F.3d

1150, 1158–59 (9th Cir. 2008).

      The second, third, and fourth factors here are inseverably linked and must be

analyzed together. Considering the temporal proximity of the prior assaults, in light

of the intervening periods that Charles spent incarcerated, Charles has engaged in a

continuous pattern of sexual assaults. Concerning the final factor, the testimony

from the victims of uncharged conduct was necessary, because it corroborated the

testimony (from the victims of the charged assaults), in a case where Charles’s

primary defense was to attack the victims’ credibility. See LeMay, 260 F.3d at

1029–30. Finally, the district court minimized any risk of unfair prejudice by

giving the jury multiple limiting instructions. See Cherer, 513 F.3d at 1159.

      The district court did not abuse its discretion by ruling on the Rule 403 issue

prior to hearing the actual testimony of the victims. United States v. Curtin, 489

F.3d 935 (9th Cir. 2007) (en banc) does not apply here, because that case involved

evidence that (at least part of which) was wholly irrelevant; was inherently highly

inflammatory; was inadequately described by the proffer to the district court; and

was in written form, which is easily and fully reviewable prior to trial. 489 F.3d at

956–58; see also United States v. Major, 676 F.3d 803, 809 (9th Cir. 2012)

(distinguishing Curtin). The testimony of the victims of uncharged conduct was

highly relevant to this case. Both parties represented to the court (through written


                                          3
filings and oral argument) the facts to which the victim witnesses were expected to

testify. These representations generally reflected the material facts as they were

later presented at trial and were sufficient to allow the district court to engage in a

meaningful analysis of the LeMay factors. See Major, 676 F.3d at 809 (holding that

the parties’ representations regarding the substance of anticipated evidence

“allowed [the district court] to appreciate fully and to weigh accurately the

challenged evidence’s probative value and its potential for unfair prejudice”).

Unlike the documentary evidence in Curtin, the live witness testimony at issue

here is not amenable to comprehensive pretrial review. Charles cites no authority

to suggest we have ever imposed such a requirement in the case of live witness

testimony. Indeed, such a requirement would be largely futile, because (among

other reasons) it is entirely possible that, at trial, the attorneys would ask different

questions and the witnesses would offer different testimony than they did during

pretrial proceedings.

      2.     The district court did not abuse its discretion in permitting the expert’s

testimony. This testimony was helpful to the jury, because it provided information

about which many jurors would not have sufficient background knowledge—the

general dynamics of sexual assault situations. See United States v. Lukashov, 694

F.3d 1107, 1116–17 (9th Cir. 2012). And the testimony did not improperly bolster

the victims’ credibility, because it pertained generally to the class of child sexual


                                            4
abuse victims, rather than to any specific individual victim. See United States v.

Bighead, 128 F.3d 1329, 1330–31 (9th Cir. 1997) (per curiam); United States v.

Antone, 981 F.2d 1059, 1062 (9th Cir. 1992). Contrary to Charles’s

characterization, the expert did not testify about what the jury should “rely on” or

“believe,” or about what factors indicate that a victim’s disclosure is “true” or

“accurate.” See United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985),

overruled on other grounds by United States v. Morales, 108 F.3d 1031, 1035 n.1

(9th Cir. 1997) (en banc).

      3.     The district court did not abuse its discretion when it admitted DM’s

testimony under Federal Rule of Evidence 801(d)(1)(B) to rebut Charles’s

contention that PM fabricated her testimony. The district court did not refuse to

consider whether PM made the prior statement before the alleged motive to

fabricate. See Tome v. United States, 513 U.S. 150, 167 (1995). As the alleged

motive to fabricate arose when PM learned that Charles would soon be released

from prison, or learned that there was an inheritance to which Charles may have

some claim, the record shows that PM disclosed her assault to DM before the

triggering event.

      4.     The district court did not abuse its discretion in permitting the

testimony of Charles’s victims about the effects they believed the assaults had on

their lives. Charles’s primary defense was that the victims fabricated the assaults.


                                           5
The victims’ testimony about these effects tended to corroborate their credibility

with respect to whether the assaults occurred and tended to explain why they

initially avoided disclosing the assaults.1

      5.     The district court did not abuse its discretion by allowing testimony

concerning Charles’s domestic abuse of his girlfriend.2 Rule 404(b) allows other-

acts evidence if “1) it tends to prove a material fact; 2) the prior act is not too

remote in time; 3) the evidence is sufficient to support a finding that the defendant

committed the act; and 4) where knowledge and intent are at issue, the act is

similar to that charged.” United States v. Tsinnijinnie, 91 F.3d 1285, 1288–89 (9th

Cir. 1996). Only the first and third elements could genuinely be disputed. The

evidence of Charles’s prior violent conduct in CK’s presence tends to prove a

material fact, because it explains why CK submitted to Charles and was too afraid

to report the assaults. See id. at 1289. And CK’s, Mortensen’s, and ZJ’s testimonies

about the domestic violence were more than sufficient to prove the domestic

violence occurred. See id.

      The evidence also passes a Rule 403 balancing test. The testimony was


      1
        We decline to address Charles’s Rule 403 arguments, because he objected
only on relevancy grounds, and he cites no authority substantively supporting his
position on this issue.
      2
        We decline to address the evidence of drug use. Charles failed at trial to
object to the drug evidence and conceded that it was “marginally relevant.” On
appeal, Charles fails to cite any authority that substantively supports his position.
                                              6
critical to explain why CK did not resist the assaults as strongly as some of the

other victims and did not feel safe to disclose the abuse. Any potential prejudice to

Charles was mitigated, because the United States did not ask detailed questions

about the violence and the district court gave the jury appropriate limiting

instructions. See United States v. Romero, 282 F.3d 683, 688 n.1 (9th Cir. 2002)

(citing Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en banc)).

      6.     Because the district court did not abuse its discretion with respect to

any of the challenged evidentiary rulings, Charles’s claim of cumulative error fails.

See United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).

      AFFIRMED.




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