                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             AUG 09 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-10104

              Plaintiff - Appellee,               D.C. No. 3:12-cr-08109-GMS-1

 v.
                                                  MEMORANDUM*
MARTIN NEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                        Argued and Submitted June 17, 2016
                             San Francisco, California

Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

      Martin Nez appeals from his jury conviction and sentence for aggravated

sexual abuse under 18 U.S.C. §§ 1153 and 2241(a) and abusive sexual contact

under 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3). We affirm Nez’s conviction,

but remand to the district court for the limited purpose of correcting several errors



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
related to Nez’s conditions of supervised release. Because the parties are familiar

with the facts of this case, we do not repeat them here.

1.    The government concedes that the district court erred in preventing Nez

from testifying about certain statements that he alleged D.B. made to him during

their sexual encounter. The statements were either admissible under Federal Rule

of Evidence 803(3) or not hearsay, and were not otherwise admitted into the

record. This error was harmless under either the constitutional or non-

constitutional standard, however, as the excluded statements had very limited

probative value in light of Nez’s other testimony recounting that D.B. initiated

much of their encounter and otherwise conveyed her willingness to engage in it.

2.    The district court did not clearly err in finding that D.B.’s statements to

Nurse Clinton were made for the purpose of medical diagnosis and treatment, nor

did it abuse its discretion in admitting Clinton’s testimony relating D.B.’s

statements. See Fed. R. Evid. 803(4). While statements of fault are not usually

admissible under Rule 803(4), this court has recognized that “[s]exual abuse

involves more than physical injury; the physician must be attentive to treating the

victim’s emotional and psychological injuries, the exact nature and extent of which

often depend on the identity of the abuser.” United States v. George, 960 F.2d 97,

99 (9th Cir. 1992). As such, “a child victim’s statements about the identity of the

                                          2
perpetrator are admissible under the medical treatment exception when they are

made for the purposes of medical diagnosis and treatment.” People of Guam v.

Ignacio, 10 F.3d 608, 613 (9th Cir. 1993) (citing George, 960 F.2d at 99). While

the medical professional’s perspective may inform our analysis, “[t]he declarant’s

self-interest in proper diagnosis provides the indicia of reliability.” United States

v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995); see also Ignacio, 10 F.3d at 613 n.3.

The record reflects that D.B. understood that her examination with Nurse Clinton

was for the purpose of medical treatment and not merely to collect evidence,

notwithstanding the fact that she had previously undergone an exam in the

emergency room. Similarly, it is not dispositive that she was referred to Nurse

Clinton by an FBI agent. Additionally, Nurse Clinton intended to provide medical

treatment during the examination, and D.B.’s description of the sexual encounter

was necessary to provide effective treatment.

3.    Even assuming that Moncher’s expert testimony was admitted in error, any

error was harmless in light of its limited scope, Moncher’s testimony on cross-

examination, and Leonard’s expert testimony.

4.    Any errors in excluding the statements that D.B. made to Nez and admitting

Moncher’s expert testimony were also cumulatively harmless. See United States v.

Cazares, 788 F.3d 956, 990-91 (9th Cir. 2015). The erroneously excluded

                                           3
testimony had limited probative value, and the erroneously admitted testimony was

limited in scope and effectively undermined during trial.

5.    The government concedes that the district court erroneously imposed two

conditions of supervised release. We remand for the district court to correct these

errors.

      First, the “special” condition of supervised release relating to major

purchases, financial obligations, and financial contracts may only be imposed

under certain circumstances not present here. See U.S.S.G. § 5D1.3(d)(3); see also

United States v. Garcia, 522 F.3d 855, 861-62 (9th Cir. 2008). It should be

stricken on remand.

      Second, there is an error in the written judgment. At the oral pronouncement

of the sentence, the district court imposed a condition requiring Nez to submit to

polygraph examinations, but the written judgment instead references

plethysmograph testing. Plethysmograph testing was neither recommended nor

imposed during sentencing. The error in the written judgment should be corrected

on remand to conform to the terms of the oral pronouncement during sentencing.

      We AFFIRM Nez’s conviction and REMAND for the limited purpose of

correcting errors in the conditions of supervised release.




                                          4
                                                                                FILED
United States v. Nez, 14-10104
                                                                                 AUG 09 2016
TASHIMA, Circuit Judge, dissenting:                                       MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


      There was only one contested issue before the jury in this case: consent.1

D.B. testified that Nez raped her, while Nez maintained that D.B., who was legally

competent to give consent, voluntarily participated in their sexual encounter. The

district court committed three discrete errors: (1) excluding D.B.’s statements to

Nez on hearsay grounds; (2) admitting Nurse Clinton’s testimony when no hearsay

exception applied; and (3) admitting Carli Moncher’s expert opinion testimony

without conducting the gatekeeping analysis required by Daubert2. Because these

errors cumulatively deprived Nez of his due process right to a fair trial, I

respectfully dissent from the majority’s affirmance of Nez’s convictions.

      I agree with the majority’s conclusion that the district court erred by

prohibiting Nez from testifying about the statements D.B. made to him. However,

I disagree that the district court properly admitted Clinton’s repetition of D.B.’s

accusations under Federal Rule of Evidence 803(4). “The basis for this [hearsay]


      1
             Nez was tried for and convicted of aggravated sexual abuse under 18
U.S.C. § 2241(a), and abusive sexual contact under 18 U.S.C. § 2244(a)(1). Both
of these crimes require the use of force, fear, or the threat of force. It is this
element that Nez was contesting when he claimed that the sexual intercourse
between him and D.B. was consensual.
      2
             Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
                                           1
exception is the presumption of reliability of statements which flow from ‘the

patient’s strong motivation to be truthful’” to secure proper diagnosis and

treatment. Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993) (emphasis added)

(quoting Fed. R. Evid. 803(4) Advisory Committee’s Note). The record does not

support the majority’s position that D.B. made her statements to Clinton for

medical treatment. To the contrary, D.B. met with Clinton at the Flagstaff hospital

only because “she was told to be there” by an FBI agent. When asked why she

went to Flagstaff, D.B. testified that she went “[f]or an interview,” which she did

not wish to participate in. When D.B. arrived at Flagstaff, she first met with

forensic interviewer Carli Moncher. Moreover, the day before D.B. met with

Clinton, she had undergone a full physical examination, lasting several hours, at a

different medical center. Under these facts, it is unlikely that D.B. was motivated

by a desire “to be diagnosed correctly and treated appropriately” when she spoke

with Clinton. Id. at 613. Accordingly, I would hold that the admission of her

statements was an abuse of discretion.

      The majority assumes, without deciding, that the district court erred in

admitting Moncher’s expert testimony. I would hold that this also was error. The

district court failed to make any “kind of reliability determination to fulfill its

gatekeeping function” before admitting Moncher’s expert testimony. Mukhtar v.

                                            2
Cal. State Univ., 299 F.3d 1053, 1066 (9th Cir. 2002), overruled in part on other

grounds by Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014)

(en banc). Nor does the record provide us with sufficient information to determine

independently whether Moncher’s expert opinion was reliable. See Estate of

Barabin, 740 F.3d at 467.

       The cumulative effect of these three errors was to deprive Nez of his due

process right to a fair trial. Even where “no single trial error . . . is sufficiently

prejudicial to warrant reversal, the cumulative effect of multiple errors may still

prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.

1996). A conviction violates due process where “the combined effect of multiple

errors rendered a criminal defense ‘far less persuasive’ and had a ‘substantial and

injurious effect or influence’ on the jury’s verdict[.]” Parle v. Runnels, 505 F.3d

922, 928 (9th Cir. 2007) (citation omitted). See also Ayala v. Chappell, 2016 WL

3913446, at *26 (9th Cir. 2016) (“We have previously recognized that although

individual errors may not rise to the level of a constitutional violation, a collection

of errors might violate a defendant’s constitutional rights.” (alterations, internal

quotation marks and citations omitted).

       Because the sole issue before the jury was consent, a common “thread r[an]

through the trial errors in this case”: the improperly excluded evidence supported

                                             3
Nez’s defense, and the erroneously admitted evidence bolstered the government’s

case. See Parle, 505 F.3d at 930. The exclusion of D.B.’s statement – “Come on,

Martin. Kiss me” – precluded Nez from fully presenting his defense that D.B.

initiated their sexual encounter. See id. at 932–34 (holding that reversal of a

murder conviction was warranted where the errors “went to the heart of the

defense’s case and the only issue before the jury”). This verbal imperative from

D.B., if believed, would have been highly probative of consent. Instead, Nez was

permitted to testify only about his interpretation of D.B.’s physical actions.

      Moreover, permitting the jury to hear Clinton’s detailed recitation of D.B.’s

story a second time, as well as a description of her demeanor, bolstered D.B.’s

credibility. Because Nez and D.B. were the only two direct witnesses, their

respective credibility was paramount. D.B.’s description of her version of the

events, as repeated by Clinton, was strong corroboration of D.B.’s testimony,

bolstering her credibility. Clinton’s testimony also reinforced D.B.’s account by

exposing the jury to D.B.’s side of the story twice.

      Finally, Moncher’s expert testimony impermissibly allowed the jury to treat

D.B.’s cutting episode as objective evidence supporting the government’s case.

“Expert evidence can be both powerful and quite misleading because of the

difficulty in evaluating it.” Daubert, 509 U.S. at 595. Here, the prejudicial effect

                                           4
of Moncher’s testimony was particularly significant, given the lack of any other

corroborating evidence supporting the prosecution’s case. Moncher’s

unsubstantiated testimony as a purported expert that self-cutting by a child victim

may indicate nonconsensual sex created the misleading impression that there was

more reliable evidence supporting the government’s case than there actually was.

      “[W]here the government’s case is weak, a defendant is more likely to be

prejudiced by the effect of cumulative errors.” Frederick, 78 F.3d at 1381. Here,

the evidence against Nez was “not overwhelming and . . . the case was a close

one.” See id. The heart of the prosecution’s case was D.B.’s testimony, which

contained several unresolved inconsistencies. That testimony was impermissibly

bolstered and emphasized, making it appear more credible than it otherwise would

have been. At the same time, the district court prevented Nez from presenting a

complete version of his defense, including the significant detail of what D.B. said

to him to initiate their encounter, in a case where the sole question before the jury

was whose word to believe. In sum, these errors, in combination, rendered Nez’s

defense “‘far less persuasive than it might have been’ and therefore had a

‘substantial and injurious effect or influence on the jury’s verdict,’” violating

Nez’s due process rights. Parle, 505 F.3d at 928 (citations omitted).

      For the foregoing reasons, I would reverse the convictions and remand for a

                                           5
new trial. I therefore respectfully dissent.




                                           6
