                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 26 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 00-2054
 v.
                                                  (D.C. No. CR-98-556-MV)
                                                         (Dist. N.M.)
 AMOS MARTINEZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Amos Martinez appeals his conviction for aggravated sexual assault. He

challenges the admission of expert testimony on two grounds: First, he asserts the

district court did not make an adequate finding of the reliability of the expert’s

methodology; and second, he argues the testimony was more prejudicial than

probative. He also contends the prosecution’s closing statements appealed to the

sympathy of the jury. We find no plain error and therefore affirm.




      *
       This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      Amos Martinez was prosecuted for sexually assaulting C. 1 on an Indian

reservation on May 4, 1998, in violation of 18 U.S.C. § 2241(c). At the time, C.

was ten years old. She is the daughter of Martinez’s ex-wife and calls Martinez

(to whom she is not related) “grandpa.”

      A. Evidence of C.’s Sexual Abuse

      There was physical evidence that at some point C. had been raped, since

she was diagnosed with a sexually transmitted disease and had a torn hymen. No

physical evidence, however, directly implicated Martinez. For example, in spite of

C.’s report to several people that Martinez had ejaculated on her and that she had

bled from the encounter, no semen or blood was found on the clothes C. wore that

day. In addition, the trauma to her hymen likely occurred weeks or months before

the alleged incident. C. exhibited antisocial behaviors consistent with sexual

abuse, but at least some of these predated the alleged assault.

      B. Evidence of Martinez’s Guilt

      In May 1998 C. told a nurse practitioner that Martinez “stuck [his penis] in

her”, but later stated in an interview with defense counsel and her family present



      1
       The alleged victim’s full name does appear in unsealed parts of the record.
However, to the extent it may assist her in preserving her privacy, we refer to her
by an initial. See United States v. Charley, 189 F.3d 1251, 1256 n.1 (10th Cir.
1999).

                                          -2-
that Martinez had not done anything. At trial, she testified via closed-circuit

television and was extremely reticent. Through leading questions, the prosecution

elicited testimony that Martinez had touched her between her legs and on her

chest, although C. said nothing about penile-vaginal contact. She stated that the

incident made her feel “[a]wful.” Her therapist at the time of the incident testified

that on May 6, 1998, C. had reported that Martinez touched her bosom and pelvic

area two days before.

      Martinez, who speaks little English, was questioned by the FBI and

consented to a polygraph examination. After being told that he had failed the

polygraph, Martinez signed a written statement in which he confessed to penile-

vaginal penetration, admitted he knew it was wrong and illegal to have sex with

an eleven-year-old girl, and took responsibility for his actions. The confession

further stated that Martinez had not received any threats or promises to induce the

confession. He later recanted and asserted that he was coerced into confessing by

the agents’ aggressive questioning.




                                         -3-
      C. Tyler’s Testimony

      At trial, the prosecution presented testimony from Judith Tyler, who

became C.’s mental health counselor shortly after the alleged sexual assault. 2

Tyler has a clinical master’s degree, a doctorate in clinical psychology, and a

license as a professional clinical counselor. She has attended a week-long seminar

on sexual trauma. She was a counselor for Child Protective Services and has seen

50-100 cases of childhood trauma over the years.

      The court accepted Tyler as a licensed professional clinical counselor with

a specialty in the field of trauma. Martinez objected that “trauma” was too broad a

field to describe her expertise. There was no specific testimony about the

reliability of her methodologies, other than the general testimony as to her

background.

      Tyler testified as to C.’s emotional state, noting that she had become

increasingly withdrawn and had threatened suicide at one point. Tyler indicated

that C.’s symptoms – sleeping and eating problems – were consistent with trauma.

When the prosecutor asked her what trauma she was referring to, Tyler answered,

“I’m talking about her allegations of the – of sexual abuse.” Tyler made no

reference to Martinez in her direct testimony; she did note, however, “As is


      2
       Tyler also testified at a hearing on the government’s motion to present C.’s
testimony via closed-circuit television. At that hearing, the court recognized Tyler
as an expert in the field of clinical psychology and granted the motion.

                                        -4-
typical with a family in which there’s been a disclosure like this, the family

seemed to be taking sides, and I knew that C. was getting a lot of criticism and

rejection by various family members as a result of having disclosed.”

      On cross-examination, Tyler conceded that C. had “very disturbing

symptoms” dating back to before the alleged incident. These included incidents of

C. stealing, lying, taking off her clothes, and “talk[ing] dirty” with other children.

These pre-incident symptoms were consistent with trauma. Moreover, defense

counsel noted that when Tyler was describing C.’s symptoms to the jury, she was

reading them out of the DSM-IV definition of post-traumatic stress disorder (until

counsel noticed and objected). Tyler also conceded that her clinical record did not

note C.’s sleeping problem, which Tyler asserted she had learned about only in

the previous few days, or her eating problem. Finally, Tyler admitted that some of

the observed symptoms may have been related to the stress that C. was

experiencing in anticipation of testifying, but was adamant that “that’s not the

majority” of her problem.

      On redirect, Tyler noted that C. had expressed fear of Martinez, who was

still coming to her house to visit her siblings (his children). Over defense

counsel’s objection, Tyler testified that C. had told her about a more recent

incident with Martinez, in which C. had been washing dishes when Martinez

approached her from behind and began fondling her. Tyler also discussed a


                                         -5-
nightmare that C. had in which the police were being “mean” to Martinez. Tyler

saw this as indicating “on the surface a concern and a caring about the alleged

perpetrator.” She referred in the abstract several times to a child victim’s mixed

feelings towards the “perpetrator” and concluded, “[T]o me the dream was a very

clear expression of that dilemma that a child who may have been incested is

feeling.”

      D. Trial

      Martinez had been indicted on two counts of aggravated sexual assault, one

for “contact between the penis of the defendant and the vulva of” C., and the

other for “the intentional touching, not through the clothing, of the genitalia of

[C.], with an intent to abuse, humiliate, harass, degrade and arouse and gratify the

sexual desire of the defendant.” The jury acquitted him of penile-vaginal contact,

but found him guilty of touching C.’s genitalia. Martinez was sentenced to 135

months’ imprisonment.

      On appeal, Martinez challenges only the district court’s decision to admit

Tyler’s expert testimony. He raises two objections: first, that Tyler was not

qualified to give the testimony, and second, that the probative value of the

testimony was substantially outweighed by its danger of unfair prejudice. He also

asserts that the prejudice was compounded by the prosecutor’s closing statements,

which he alleges appealed to the jury’s sympathy.


                                         -6-
                                    DISCUSSION

I. Jurisdiction and Standard of Review

      The district court had jurisdiction over this criminal prosecution under 18

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We granted

Martinez’s motion to waive oral argument in a prior order.

      Martinez concedes that he did not raise the objections asserted on appeal in

the trial court. We therefore review for plain error. See Fed. R. Crim. P. 52(b). To

reverse, we must find (1) error that is (2) plain and (3) affects substantial rights.

See Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 137 L. Ed. 2d

718 (1997). For the third prong, “[i]t is the defendant rather than the Government

who bears the burden of persuasion with respect to prejudice.” United States v.

Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). If all three

preconditions are met, we may consider whether to exercise our discretion to

reverse, but only if the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Johnson, 520 U.S. at 467.

II. Tyler’s Qualification To Testify

      Federal Rule of Evidence 702 requires the trial court to ensure that expert

testimony is reliable. See United States v. Velarde, 214 F.3d 1204, 1208 (10th

Cir. 2000). The court has broad discretion both in deciding how to assess

reliability and in making the ultimate determination. See id. at 1208-09.


                                          -7-
      In this case, the trial court made no explicit finding on reliability, but

Martinez did not call Tyler’s methodology or principles into question. Although

the district court should nevertheless have made reliability findings, under these

circumstances we will look to the record to discern support for the district court’s

decision to allow the testimony. Here, it is evident the trial court had a sufficient

basis to admit the vast majority of Tyler’s testimony. First, as C.’s clinical

therapist, Tyler was able to testify as to her personal observations of C. “A

treating physician is not considered an expert witness if he or she testifies about

observations based on personal knowledge, including the treatment of the party.”

Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999). Second, the court had

considerable evidence of Tyler’s training and professional experience. Martinez’s

counsel conducted voir dire on these qualifications. When Tyler did offer

testimony that went beyond her treatment, this background generally sufficed to

substantiate her opinions. For example, Tyler compared C.’s behavior to those of

other children who have experienced trauma.

      Martinez objects specifically to two aspects of Tyler’s testimony. First, as

noted above, she discussed typical behaviors of traumatized children. Second, she

identified Martinez’s alleged assault of C. as the cause of the trauma in this case.

We hold that the district court did not commit plain error in admitting these

statements.


                                          -8-
      Even if we were to assume these statements should have been excluded,

Martinez has not demonstrated that they affected his substantial rights. “The

substantiality requirement of the plain error rule embodies a requirement that the

defendant prove prejudice attributable to the error.” United States v. Williamson,

53 F.3d 1500, 1521 (10th Cir. 1995). To satisfy this prong, Martinez must show a

reasonable probability that (1) if the district court had inquired into reliability, it

would not have accepted Tyler as an expert witness, and (2) if her testimony had

been limited thus, Martinez would have been acquitted on the second count. Cf.

United States v. Hanif, 1 F.3d 998, 1002 (10th Cir. 1993) (noting that the

defendant “must allege prejudice – i.e., that the district court admitted

inadmissible evidence – to allege” a violation of Fed. R. Evid. 103(c)).

      We find nothing in the record to support Martinez’s allegation that Tyler’s

testimony would have been excluded had the court made an explicit reliability

determination. Martinez had an opportunity to ask about the foundations of

Tyler’s testimony on cross-examination and recross, but declined to do so. Indeed,

when she started to testify on redirect that the third phase of trauma reaction has

“been written extensively about by experts in the field of child trauma,” defense

counsel successfully objected that this was hearsay. It thus appears that Martinez

himself prevented Tyler from establishing the reliability of her expert opinions.




                                           -9-
On this record, Martinez has not met his burden to show that Tyler’s testimony

would have been limited.

      Moreover, even if it had been limited, we do not find a reasonable

possibility the outcome would have differed. Many of the statements Martinez

objects to, such as those characterizing the typical behaviors of traumatized

children, were too general and abstract to prejudice Martinez in this case. The

other statements, such as Tyler’s reference to “her allegations of the – of sexual

abuse,” constituted only a small part of the testimony, and Tyler qualified this

reference to sexual abuse as an “allegation” rather than as a “fact.” Nearly all of

Tyler’s testimony was unobjectionable, and on appeal Martinez has not objected

to the testimony of any other witnesses. Cf. United States v. Charley, 189 F.3d

1251, 1271 (10th Cir. 1999) (“[O]nly a small, albeit important, portion of the

testimony admitted at trial was erroneously admitted.”). On this record, we cannot

say Martinez has shown that his substantial rights were affected by the admission

of Tyler’s testimony.

III. Rule 403

      Martinez also objects to Tyler’s testimony under Federal Rule of Evidence

403, which states that relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice.” “Rule 403 is an

extraordinary remedy and should be used sparingly.” United States v. Rodriguez,


                                        - 10 -
192 F.3d 946, 949 (10th Cir. 1999). Tyler’s testimony helped the jury understand

C.’s behavior both before and after the alleged assault. Even if it could have been

somewhat prejudicial to Martinez, it was within the district court’s discretion to

find its danger of unfair prejudice did not substantially outweigh its probative

value. Under the circumstances, it was not plain error for the court to admit

Tyler’s testimony.

IV. Closing Statements

      Martinez objects to several statements in the prosecution’s closing

arguments that highlighted C.’s trauma. In particular, the prosecution closed with

these words:

      And certainly this kid was trashed as any victim of sexual assault is
      always trashed. And yes, she had behavioral problems, but I ask you,
      who is the thief in this case? Who stole [C.]’s childhood? Who
      violated this child and told you how awful she feels, and she can’t
      even tell you exactly what he did to her.
             I ask you, ladies and gentlemen, to convict that man of both
      counts of aggravated sexual abuse of [C.]

Martinez argues that these and other similar statements were inflammatory and

appealed to the jury’s sympathy.

      “We do not condone comments encouraging the jury to allow sympathy,

sentiment, or prejudice to influence its decision.” Duvall v. Reynolds, 139 F.3d

768, 795 (10th Cir. 1998). Nonetheless, if “it [is] probable that the nature of the

crime produced sympathy for the victim long before the prosecutor gave his


                                         - 11 -
closing remarks,” the remarks may not be prejudicial. Id. The trauma to C. was

hideous no matter who was responsible, and it was likely to produce sympathy.

The prosecution’s remarks did not add to the jury’s sympathy in any significant

way. The defense counsel cautioned the jury not to be swayed by sympathy, and

the prosecution disclaimed any intention to inject sympathy into the deliberations.

The jury instructions stated that the verdict had to be based “solely upon the

evidence, without prejudice or sympathy.”

      Neither of the cases that Martinez relies upon is relevant. In United States

v. Lowder, 5 F.3d 467, 473-74 (10th Cir. 1993), we noted that it was improper for

the prosecution to state that the victims had nobody to speak for them, but we

found the judge’s curative instruction (given after a contemporaneous objection)

to be sufficient. Thus, we found no reversible error. In United States v. Payne, 2

F.3d 706, 712 (6th Cir. 1993), the court found misconduct when the prosecution

repeatedly referred to facts not in evidence during the trial. The court noted that

these remarks went “beyond anything in the evidence or anything invited by the

defense.” Id. at 715. Here, by contrast, there was no reference made to facts not in

evidence.

      Under the circumstances, we find no plain error in the prosecution’s closing

statements.




                                        - 12 -
                         CONCLUSION

We find no plain error and therefore AFFIRM.



                             ENTERED FOR THE COURT



                             David M. Ebel
                             Circuit Judge




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