                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10043

              Plaintiff-Appellee,                D.C. No.
                                                 3:12-cr-08082-JAT-1
 v.

WILLARD JOHN,                                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                        Argued and Submitted July 6, 2016
                            San Francisco, California

Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,** District
Judge.

      Willard John appeals his jury conviction and life sentence for federal

second-degree murder. We affirm.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
1.    The district court did not err in denying John’s motion to suppress his

statements to the investigating agent. We review de novo whether a confession was

made voluntarily, but we review “the district court’s factual findings underlying its

determination of voluntariness” for clear error. United States v. Gamez, 301 F.3d

1138, 1144 (9th Cir. 2002). Whether a confession was made voluntarily is

determined by “‘whether [the] defendant’s will was overborne’ by the

circumstances surrounding the giving of [the] confession.” Dickerson v. United

States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S.

218, 226 (1973)).

      The district court did not clearly err in determining that, although John was

unable to speak when the agent questioned him, John was alert and oriented during

the time of the interviews. John’s doctor testified that John was alert and oriented

on the days of the interviews. The agent testified that, before he questioned John,

he asked the nurse what medications John was taking and the nurse said John was

not taking any medications that would alter his thinking or make him sleepy—that

he was fully able to communicate. The agent also testified that John appeared alert

and coherent during the interviews. The agent testified that John “was writing




                                          2
notes” and, “although he couldn’t speak, [they] were communicating just fine

without any problems.”1

      Thus, given these facts, we cannot conclude that the district court erred in

finding that John’s statements to the agent were made voluntarily; that his will was

not overborne by the circumstances surrounding the confession. See Dickerson,

530 U.S. at 434.

2.    The district court did not abuse its discretion by denying John’s motion for a

continuance in response to the government’s disclosure of its report concerning the

DNA evidence on the eve of trial. John had moved for a continuance or, in the

alternative, to exclude the report. The district court denied the continuance and

granted John’s alternative motion to exclude the report. The district court



      1
        Further, at the first interview, after John asked if it would be possible to
sign the Miranda form at a later date, the agent asked John if he wanted to continue
talking and John answered “yes.” The agent also confirmed that John wanted to
talk with him at the second interview. Although the dissent concludes John’s
written statement “consisted primarily of [the agent] describing a particular version
of events and asking John whether it was accurate,” Dissent at 2, the record reflects
that John clarified and gave specific information to the agent, provided information
that was not first suggested by the agent, and provided examples to support his
statement. The agent testified that the statement was “based exactly on what we
communicated with each other as [John] nodded and shook his head and wrote
many, many notes.” Further, contrary to the view of the dissent, it would not have
been “exceptionally difficult” for John to shake his head “no” when he was asked
whether the statement was accurate and whether he agreed with it.


                                          3
explained that the government did not have exclusive control over the DNA

evidence, and that John could have tested the DNA evidence himself and prepared

his own report, but did not. Further, any potential prejudice that would have

resulted from the government’s use of the report was ameliorated by the district

court’s decision to grant John’s alternative request to exclude the report.

3.    The government did not violate John’s due process rights by failing to

preserve potentially exculpatory evidence from the crime scene. For the

government’s destruction of evidence to rise to the level of a due process violation,

John must prove “that the government acted in bad faith, the presence or absence

of which ‘turns on the government’s knowledge of the apparent exculpatory value

of the evidence at the time it was lost or destroyed.’” See United States v. Sivilla,

714 F.3d 1168, 1172 (9th Cir. 2013) (quoting United States v. Cooper, 983 F.2d

928, 931 (9th Cir. 1993)). Whether the government acted in bad faith is a factual

finding determined by the district court, which we review for clear error. Id.

      The district court did not clearly err in finding that the government did not

dispose of the potentially exculpatory evidence in bad faith. The district court

noted that John “scantly” argued the element of bad faith when John claimed that

the government had failed to preserve the evidence. John argued before the district

court that “[t]he FBI deliberately gave the evidence away, knowing it would be


                                           4
destroyed.” The district court found that this did not rise to the level of bad faith,

because the investigating agent “specifically collected a blood sample from the top

of the mattress and cut-out the bloody fingerprints on the underside, thereby

preserving the most relevant portions of the mattress prior to its destruction.” The

district court further found that the agent “credibly testified that he did not believe

that the remainder of the mattress constituted potentially exculpatory evidence, in

part because the lack of evidence of an intruder and the fact that the mattress

undeniably had been saturated with [John’s] and [the victim’s] blood.”

      As to the government’s failure to preserve the photographs of John’s

injuries, the government did not violate John’s due process rights. The district

court did not clearly err in finding that John’s argument with respect to the

photographs was moot. John’s injuries were not at issue. Further, thumbnail-sized

images of the photographs were preserved and admitted into evidence.

4.    The district court did not abuse its discretion by denying John’s request for

an adverse inference instruction with respect to the lost evidence. A defendant may

be entitled to an adverse inference instruction even if the government did not act in

bad faith, but only when the quality of the government’s conduct was poor and the

prejudice to the defendant was significant. Sivilla, 714 F.3d at 1173–74. Here, the

government’s conduct in handling the evidence was not poor, and John was not


                                            5
significantly prejudiced. As explained above, the government collected a blood

sample from the top of the mattress and preserved a cut-out of the mattress before

disposing of it. Additionally, the photographs of John’s injuries were preserved via

the thumbnail-sized images. Thus, any resulting prejudice was insignificant.

5.    The district court did not plainly err in admitting the victim’s statements to

her physical therapist, because such statements were “reasonably pertinent” to

medical diagnosis and treatment and described the “inception” and “general cause”

of her injuries. See Fed. R. Evid. 803(4). Although the dissent notes this hearsay

exception does not generally extend to “statements of fault,” both this Court and at

least one sister Circuit have held to the contrary in the context of domestic violence

cases. See United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (“Hawkins’

statements to Dr. Grover, including that her live-in boyfriend had caused her

injuries, were statements made for the purpose of medical diagnosis or treatment,

and also hearsay exceptions.”); United States v. Joe, 8 F.3d 1488, 1495 (10th Cir.

1993) (holding doctor’s testimony admissible under Federal Evidence Rule 803(4)

where “the identity of the sexual assailant was important for his recommendation

regarding Ms. Joe’s after-care, including appropriate counseling”). The dissent

further suggests that statements regarding the identity of an abuser are only

admissible under this exception when necessary to treat emotional or psychological


                                          6
injuries related to the abuse. That is the case here. As in Joe, the victim and her

medical provider discussed her future safety, and the physical therapist “offered

help” in seeking protection from her abuser. This conversation took place during

the victim’s physical therapy session. It is therefore admissible as “reasonably

pertinent” to her treatment for the injuries she sustained.

6.    The district court’s admission of the roommate’s statement to the officer did

not violate the Confrontation Clause, because the roommate testified at trial and

was subject to cross-examination. See Padilla v. Terhune, 309 F.3d 614, 621 (9th

Cir. 2002). Moreover, the district court instructed the jury that the officer’s

testimony regarding the roommate’s statement could be “considered for

impeachment purposes only and not as substantive evidence.”

7.    The district court did not abuse its discretion when it admitted prior act

evidence of John’s physical abuse of the victim. The court admitted the evidence,

because it was relevant in demonstrating that John had the “motive, opportunity,

[or] intent” necessary to commit the crime. Fed. R. Evid. 404(b)(2); see also

United States v. Chea, 231 F.3d 531, 534 (9th Cir. 2000) (explaining that Rule

404(b) is “one of inclusion” in that “other acts evidence is admissible whenever

relevant to an issue other than the defendant’s criminal propensity” (quoting

United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982))). Furthermore,


                                           7
the probative value of the evidence was not substantially outweighed by the danger

of unfair prejudice, because the district court instructed the jury, both during and at

the end of trial, that such evidence was “admitted only for the limited purpose of

proving [John’s] intent, motive, opportunity, preparation, plan, knowledge,

identity, absence of mistake, or absence of accident, and, therefore, [must be

considered] only for that limited purpose and not for any other purpose.” See Fed.

R. Evid. 403, 404(b)(2). Finally, even if the district court erred in admitting the

evidence pursuant to Rule 404(b), the error was harmless. See United States v.

Hodges, 770 F.2d 1475, 1480 (9th Cir. 1985) (holding an error is harmless if “it is

more probable than not that the erroneous admission of the evidence did not affect

the jury’s verdict”).

8.    The prosecutor did not commit misconduct during closing argument. We

review John’s claims of prosecutorial misconduct for plain error, because John

failed to object at trial. See United States v. Moreland, 622 F.3d 1147, 1158 (9th

Cir. 2010). We can reverse a conviction under this standard only if, “viewed in the

context of the entire trial, the impropriety seriously affected the fairness, integrity,

or public reputation of judicial proceedings, or where failing to reverse [the]

conviction would result in a miscarriage of justice.” United States v. Geston, 299




                                            8
F.3d 1130, 1135 (9th Cir. 2002) (quoting United States v. Tanh Huu Lam, 251 F.3d

852, 861 (9th Cir. 2001)).

      First, the prosecutor did not err in arguing that “[t]here is no way the

murderer could have left [the] scene without leaving tracks [of blood] behind,”

because prosecutors are permitted to make reasonable inferences from the evidence

during closing argument. See United States v. Cabrera, 201 F.3d 1243, 1250 (9th

Cir. 2000). Furthermore, the district court specifically instructed the jury that they

were to decide the case based on the evidence presented during trial and not on the

attorneys’ arguments. Thus, even if the prosecutor did misstate the evidence, such

error was harmless. See Fields v. Brown, 503 F.3d 755, 782 (9th Cir. 2007) (en

banc) (finding that jurors are presumed to follow the court’s instructions).

      Second, the prosecutor criticized only the defense’s theory by calling it a

“red herring,” a proper practice in closing argument. See United States v.

Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and

tactics is a proper subject of closing argument.”).

      Lastly, the prosecutor did not improperly comment on John’s silence. The

prosecutor argued that

      [I]f somebody else did this, why didn’t [John] say that [to the
      investigating agent]? Why didn’t he say that? He had not one, but two
      opportunities, at lengthy interviews with [the agent] . . . . If somebody


                                           9
      else did this, he would have said so. He would have told [the agent] that.
      But he didn’t.

John had communicated at length with the investigating agent on two separate

occasions. Thus, when “viewed in the context of the entire trial,” the prosecutor’s

statements were not made in regard to John’s silence, but rather to the implications

of John’s statements to the investigating agent. See Geston, 299 F.3d at 1135

(citation omitted); see also Leavitt v. Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per

curiam) (“[W]hen a defendant chooses to speak, the prosecutor can, surely, explore

that speech and its implications.”).

9.    The district court did not plainly err in failing to instruct the jury on

“absence of heat of passion” as an element of second-degree murder. Because

John’s theory of the case was that he did not kill the victim, the evidence did not

support giving a heat-of-passion instruction. John made no argument relevant to

the instruction and did not request that the instruction be given. See United States

v. Roston, 986 F.2d 1287, 1290 (9th Cir. 1993) (“The prosecution is required to

negate a killing in the heat of passion only if that issue is ‘properly presented in a

homicide case.’” (quoting Mullaney v. Wilbur, 421 U.S. 684, 704 (1975))).




                                           10
10.     John’s life sentence was not unreasonable. Because John argues for the first

time on appeal that his life sentence was unreasonable, we review for plain error.

See United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).

        The district court did not err procedurally, because the district court

explained its reasoning and based the increase to a life sentence on U.S.S.G.

§ 5K2.8, “Extreme Conduct,” and other factors, as permitted by 18 U.S.C.

§ 3553(c)(2).

        The district court’s upward departure under U.S.S.G. § 5K2.8, “Extreme

Conduct,” was not substantively unreasonable, because John’s conduct was

unusually heinous. The medical examiner found that the victim suffered multiple

lethal wounds, including a slashed throat that cut through to the spine and two deep

stab wounds to her back. She also suffered numerous other wounds, including

seven other stabs wounds to her back and multiple cuts to her arms and side of her

head.

        Furthermore, the district court’s upward departure to arrive at a life sentence

was not substantively unreasonable. The district court chose to only depart upward

two levels under U.S.S.G. § 5K2.8, though it could have gone further. The district

court stated that “these [heinous acts] would all justify . . . a four-level upward

departure [under U.S.S.G. § 5K2.8] to offense level 42,” which would have


                                            11
resulted in a range of 360 months to life. However, instead of imposing a four-

level upward departure under U.S.S.G. § 5K2.8, the district court “elected to adopt

[a] criminal history category III [from category I] and a two-level upward

departure [under U.S.S.G. § 5K2.8] to offense level 40,” which the district court

noted also resulted in a range of 360 months to life.

      On appeal, John argues that the district court erred by jumping from criminal

history category I to III, because the district court had no basis for doing so under

the Guidelines. We review a district court’s upward departure from the Guidelines

under U.S.S.G. § 4A1.3 for an abuse of discretion. Koon v. United States, 518 U.S.

81, 98–100 (1996). Under this standard, we may reverse the district court’s

decision only if we are “convinced firmly that the [district court’s] decision lies

beyond the pale of reasonable justification under the circumstances.” Harman v.

Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).

      The district court did not abuse its discretion by departing upward to impose

a life sentence. The district court based its decision on the “grossly

underrepresented” criminal history, on the “especially cruel and heinous and

brutal” murder, and on John’s long history of abusing and assaulting the victim.

The revised Guidelines range for a life sentence was based on specific and general

deterrence factors to prevent similar crimes in the future. The district judge stated


                                           12
that he had “absolutely no confidence that upon release [John] won’t revert to the

same patterns that he displayed over such a long period of time. So I’m satisfied

that protection of the public requires this sentence.”

      AFFIRMED.




                                          13
                                                                              FILED
United States of America v Willard John 15-10043
                                                                                  MAR 20 2017
BERZON, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I respectfully dissent. I would hold that John’s statements to Special Agent

Hale in the hospital were not voluntary, and should not have been admitted into

evidence; that the Federal Rules of Evidence barred the admission of testimony

regarding John’s previous acts of domestic violence; and that the Rules also barred

the admission of Norma Jean Henry’s out-of-court statement to her physical

therapist identifying John as her abuser. Taken together, these errors seriously

undermined the fairness of John’s trial. I would therefore reverse the conviction.

      1.     The district court erred in concluding that John’s confession was

voluntary.1 When Hale first interviewed John in the hospital, John had a tube in

his throat and was unable to speak. He was heavily medicated and in considerable

pain. When invited to sign a form waiving his Miranda rights at the first interview,

John inquired in writing if it would be possible to sign it at a later date. As

recounted by Hale, John’s initial responses at the second interview indicated that

John was still “not quite ready right now” for an interview, and that he would have

preferred to “talk later when [his] voice [was] a little better.” John also wrote “Can

I wait tell [sic] I get my voice back then we can talke [sic].” Taken together,


      1
      We review the voluntariness of a confession de novo. United States v.
Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002).
John’s written statements and responses to Special Agent Hale’s prompts make

clear that John did not wish to proceed with the interrogation under the

circumstances, and desired to continue the interrogation only when he was capable

of talking.

      John’s initial written statement was suggested to John, rather than

volunteered; it consisted primarily of Hale describing a particular version of events

and asking John whether it was accurate, to which John nodded yes or no. Given

John’s inability to speak, it would have been exceptionally difficult for him to

object to or clarify any aspects of Hale’s account. Indeed, during the second

interview, John stated that “I think all [sic] go with the statement you wrote

because I don’t even know what had happened that night,” indicating acquiescence

rather than agreement.

      Notably, John’s statement includes obvious inaccuracies or confusion. For

example, he stated that he had consumed over 30 cans of beer on the day of the

killing, but his blood-alcohol concentration indicated that he had not been drinking

heavily. Adoption of “demonstrably false” answers constitutes “particularly strong

evidence” of suggestibility. United States v. Preston, 751 F.3d 1008, 1025 (9th

Cir. 2014) (en banc).

      The facts of this case somewhat resemble those in Mincey v. Arizona, 437

                                          2
U.S. 385 (1978). In Mincey, government agents interviewed the defendant while

he was in the hospital suffering from a serious gunshot wound. When interviewed,

Mincey, like John, was unable to talk; responded to questioning by writing answers

on pieces of paper; and stated that he would be able to answer more accurately at a

future date. Mincey was “evidently confused and unable to think clearly,” as

evidenced by written answers which were “on their face not entirely coherent.” Id.

at 398–99. The Supreme Court held that Mincey’s will “was simply overborne,”

and that his statements could not be used against him at trial. Id. at 401–02.

      Mincey, unlike John, unequivocally invoked his right to counsel. And here,

the district court found that John’s ability to think clearly was not impaired. But

John’s statements – comprised predominantly of assertions made by Special Agent

Hale, to which John merely agreed by nodding his head – were in some respects

less a product of free will than Mincey’s own written statement, and, while not

incoherent, were in part factually suspect.2 I would therefore hold that the district

court erred in admitting John’s statements to Agent Hale.


      2
         The prosecution emphasized John’s statement in its closing argument,
contending that while John had two opportunities to “speak” to Special Agent
Hale, he did not state at the time that another person had committed the crime, as
he would argue at trial. Thus, the government used John’s statements not only for
what John “said” to Special Agent Hale, but what he did not say, in spite of his
inability to speak and his professed difficulty in remembering the incident.

                                           3
      2.     Next, I would conclude that the district court abused its discretion in

permitting testimony from nine separate witnesses regarding John’s previous

incidents of domestic violence against Henry over a “12-year period of abuse.”

Federal Rule of Evidence 404(b) states that evidence of prior acts “is not

admissible to prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character,” but may be admissible

“for another purpose, such as proving motive, opportunity, [or] intent.”3

      Notably, the government essentially acknowledged in its pretrial briefing

that it intended to rebut the defense’s theory of the case by arguing that John acted

in conformity with a violent predisposition: “The defendant’s prior acts of violence

against the victim show that it was the defendant, and not some third party intruder

who killed the victim.” The government similarly argues on appeal that the

evidence was necessary to “show Defendant’s identity as the perpetrator.” These

arguments rest on precisely the type of predisposition inference that Rule 404(b) is

intended to preclude.

      The majority holds that evidence of John’s prior bad acts was admissible at


      3
        If the proffered evidence falls into one of these categories, the advisory
notes to Rule 404(b) instruct the district court to make a determination as to
“whether the danger of undue prejudice outweighs the probative value of the
evidence” under Rule 403.

                                           4
trial because it helped to prove “motive, opportunity or intent.” We have held that

previous acts of domestic violent may evince an intent to murder the victim of

those prior acts. See United States v. Lewis, 537 F.2d 415, 418–419 (9th Cir.

1987). I would hold Lewis inapposite for two reasons. First, as we emphasized in

Lewis, the relevant prior acts must be “close enough in time to be relevant” to

prove intent. Id. at 419. That cannot be said of much of the prior-act evidence in

this case. For example, the testimony of McDaniel John (to which Willard John

objected at trial) concerned acts of violence at least nine years before Henry’s

death. Second, the defendant in Lewis had admitted to previous acts of violence

against the victim, bolstering our conclusion in that case that the evidence was not

overly prejudicial to the defendant. Here, the government called nine witnesses to

testify to John’s previous abuse of Henry, to which he did not admit at trial. The

prejudice of such voluminous testimony almost surely outweighed any probative

value with respect to intent.

      3.     Lastly, I would hold that the district court plainly erred in admitting

Henry’s out-of-court statement to her physical therapist identifying John as the

cause of injuries to her face and body. That statement was definitely inadmissible

hearsay, as it did not fall within the exception of Federal Rule of Evidence 803(4).

      The advisory note to Rule 803(4) cautions that “statements of fault”

                                          5
ordinarily do not fall under the rule’s exception for statements made for medical

diagnosis or treatment. Such a statement of fault may be admitted in one limited

circumstance: when the statement identifies a sexual abuser. United States v.

Yazzie, 59 F.3d 807, 812 (9th Cir. 1995). “Sexual 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, 99–100 (9th Cir.

1992). No sexual abuse was at issue here. More importantly, a physical therapist

would not be expected or trained to treat emotional or psychological injuries. The

identity of an abuser would thus not be relevant to the physical therapist’s

diagnosis or treatment. United States v. Hall, 419 F.3d 980, 987 (2005) is not to

the contrary, as the relevant statement in Hall was made to a physician, who could

reasonably be expected to treat emotional and psychological injuries.

      For the foregoing reasons, I respectfully dissent.




                                          6
