                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30288

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00113-RFC-1

  v.
                                                 MEMORANDUM*
PERRY NATION,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                     Argued and Submitted October 10, 2013
                               Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Defendant-Appellant Perry Nation appeals his conviction of two counts of

aggravated sexual abuse in violation of 18 U.S.C. §§ 1153(a) and 2241(c), and his

sentence to 235 months in prison. We have jurisdiction pursuant to 28 U.S.C. §

1291, and now affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      First, the district did not abuse its discretion in admitting the rebuttal

testimony of the government’s expert witness Stephanie Knapp, an FBI Child and

Adolescent Forensic Interviewer. On cross-examination of government witnesses

and in its case-in-chief, the defense sought to raise the inference that the alleged

victims were incredible because they had each delayed disclosing the abuse for

several years. Defense counsel asked each of the victims about their failure or

unwillingness to disclose immediately, and asked the victims’ mother and other

witnesses whether they had ever been told of the abuse previously or noticed any

signs of abuse. Since the defense had implicitly, but repeatedly, attacked the

victims’ credibility based on their failure to reveal the abuse at or near the time it

occurred, the district court did not abuse its discretion in permitting the

government to rebut that attack by introducing Knapp’s testimony about the

general characteristics of child victims of sexual abuse and the time it takes for

such victims to disclose the incidents. See United States v. Bighead, 128 F.3d

1329, 1330-31 (9th Cir. 1997).

      Second, Defendant challenges the qualification of Knapp as an expert under

Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). “Daubert’s tests for the

admissibility of expert scientific testimony do not require exclusion of expert


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testimony that involves specialized knowledge rather than scientific theory.”

Bighead, 128 F.3d at 1330 (citing United States v. Cordoba, 104 F.3d 225 (9th Cir.

1997)). Defendant failed to object to Knapp’s testimony on the ground that she did

not possess professional qualifications that would have satisfied Daubert. We

therefore review for plain error. Even assuming that Knapp’s testimony as to

scientific studies of child abuse victims went beyond “specialized knowledge,”

where Knapp’s testimony that was based on her specialized knowledge was

substantially similar to the results of the scientific studies, admission of this

evidence was not plain error.

      Third, Defendant argues the government failed to disclose Knapp as an

expert witness. However, Federal Rule of Criminal Procedure 16(a)(1)(G) only

requires the government to disclose any expert witnesses that it will call “during its

case-in-chief at trial.” That express language indicates that “the government

ordinarily need not disclose the names of rebuttal witnesses.” Fed. R. Civ. P.

16(a)(1)(G); see also Matylinsky v. Budge, 577 F.3d 1083, 1094 (9th Cir. 2009).

      Fourth, Defendant argues that Knapp’s testimony improperly bolstered the

credibility of the victims. Knapp testified as to the “general behavioral

characteristics” of victims of sexual violence she had encountered during her

career. Bighead, 128 F.3d at 1330 (quoting United States v. Hadley, 918 F.2d 848,


                                            3
853 (9th Cir. 1990). No “improper buttressing” occurs when the expert witness

“testifie[s] only about ‘a class of victims generally,’ and not the particular

testimony of the child victim in this case.” Id. at 1331 (quoting Hadley, 918 F.2d

at 852). Knapp’s testimony was no different; there was no improper vouching

here. Cf. United States v. Binder, 769 F.2d 595, 602 (9th Cir. 1985) (reversing

where expert witness testimony sought to establish that “the complaining witnesses

were able to distinguish reality from fantasy and truth from falsehood” and was

“not limited to . . . a discussion of a class of victims generally”), overruled on other

grounds by United States v. Morales, 108 F.3d 1031, 1035 n.1 (9th Cir. 1997) (en

banc).

         Fifth, Defendant argues that Knapp’s references to studies on the reporting

of child abuse violated Defendant’s rights under the Confrontation Claude of the

Sixth Amendment, which only reaches testimonial evidence. No objection was

made, so we review for plain error. “To rank as ‘testimonial,’ a statement must

have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially

relevant to later criminal prosecution.” Bullcoming v. New Mexico, 131 S. Ct.

2705, 2714 n.6 (2011) (alteration marks in original) (quoting Davis v. Washington,

547 U.S. 813, 822 (2006)). The statistical studies Knapp referenced are not

testimonial because their “primary purpose” was not to “establish or prove past


                                           4
events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.

The studies contained no evidence or proof as to the “past events” of this case.

There was no plain error in admitting this testimony.

      Finally, “in light of the factors set forth in 18 U.S.C. § 3553(a)” the district

court did not impose a substantively unreasonable sentence. See generally United

States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009); United States v. Carty, 520

F.3d 984 (9th Cir. 2008) (en banc). The court carefully weighed the 18 U.S.C. §

3553(a) factors, noting the gravity of the crimes, the defendant’s lengthy criminal

history, and the need to protect the public and deter sexual abuse. The sentence is

not disproportionate to the crimes of raping one’s own daughter and sexually

molesting children within one’s care, and was within the Guidelines.

      AFFIRMED.




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