                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0291n.06

                                            No. 13-1312
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                           Apr 18, 2014
                                FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
WAYLON PEGO,                                            )   COURT FOR THE EASTERN
                                                        )   DISTRICT OF MICHIGAN
       Defendant-Appellant.                             )


BEFORE:        KEITH, COOK, and KETHLEDGE, Circuit Judges

       DAMON J. KEITH, Circuit Judge. A jury convicted Waylon Pego on multiple counts of

domestic violence-related offenses, which he perpetrated over the course of five years. Pego alleges

that he incurred substantial prejudice from the district court’s failure to provide certain limiting

instructions, that its evidentiary rulings were erroneous, that the trial was tainted by prosecutorial

misconduct, and that the admission of opinion testimony from a domestic abuse expert denied him

a fair trial. Although in one instance we find the lack of a limiting instruction troubling, we are

firmly convinced that the overwhelming evidence against Pego otherwise precludes a finding of the

requisite prejudice and thus reversal is unwarranted. Moreover, we are not persuaded that the

court’s evidentiary rulings, the prosecutor’s actions, or the admission of opinion testimony were

improper. Accordingly, we AFFIRM Pego’s convictions.
No. 13-1312, United States v. Pego


                                        I. BACKGROUND

        A brief recitation of the underlying facts will provide context to Pego’s appeal. On May 9,

2012, Pego was indicted in the Eastern District of Michigan on charges of unlawful imprisonment,

assault with a dangerous weapon with intent to do bodily harm, domestic assault by a habitual

offender, witness tampering, interfering with electronic communications, assault causing serious

bodily injury, and aggravated sexual abuse. R. 1. A superseding indictment was later filed on July

25, 2012. R. 17. The charges stem from acts Pego committed against female victims with whom

he had relationships from 2007 to 2012. See R. 51, Tr. II. At trial, the government introduced

evidence of the abuse from three victims: N.M., T.H., and A.H. See id. The testimony establishes

that Pego abused, sexually assaulted, battered, intimidated, harassed, and, in one way or another,

imprisoned the three women. See id. Pego’s abuse of A.H., the last victim, triggered his arrest (he

was about to hit A.H. with a golf club when the police arrived). Id. at PgID 438-39. Once in

custody, Pego telephoned his family and implored them to attempt to convince A.H. to lie about the

abuse. Id. at PgID 570, 587-88. A jury trial commenced on November 14, 2012. On November 15,

the jury convicted Pego on sixteen charges. R. 45.

                                           II. ANALYSIS

        To support the charge of domestic assault by a habitual offender, the government must prove

that Pego “ha[d] a final conviction of at least 2 separate prior occasions . . . that would be . . . any

assault, sexual abuse or serious violent felony against a spouse or intimate partner.” 18 U.S.C.

§ 117. At trial, Pego stipulated that he indeed had two such convictions, which were read into the

record before the jury. The prosecutor referenced this stipulation in both the opening and closing

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arguments. (“[E]ven before this first victim had this happen to her back in 2007, you’ll hear that the

Defendant had two or more assault or sexual assault or violent felony convictions against a spouse

or intimate partner.” R. 50, PgID 372). On appeal, and for the first time, Pego alleges that the

district court was required to sua sponte provide a limiting instruction to ensure that the jury would

not use the prior convictions for their forbidden propensity inferences.

        Generally, a defendant may assign error to the omission of a criminal jury instruction only

when the defendant has requested the instruction and objected to its omission before submission

of the case to the jury. See FED. R. CRIM. P. 30. If the defendant has failed to request a particular

instruction or object to its omission, this court reviews the omission only for plain error. See United

States v. McCall, 85 F.3d 1193, 1195-96 (6th Cir. 1996). Indeed, “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the court.”

United States v. Olano, 507 U.S.725, 731 (1993) (quoting FED. R. CRIM. P. 52(b)). There are three

prongs to a plain error analysis: (1) there must be error, (2) this error must be plain, and (3) the error

must affect substantial rights. Id. at 732-34.

        Assuming without deciding that the first two prerequisites for relief are satisfied, we

conclude that, on the basis of overwhelming evidence against the defendant, the third prong is not.

For an error to affect substantial rights, it “must have been prejudicial: It must have affected the

outcome of the district court proceedings.” Olano, 507 U.S. at 734.1 Where the available evidence



               1
                  The Supreme Court has “noted the possibility that certain errors, termed structural errors, might
      affect substantial rights regardless of their actual impact on an appellant’s trial.” United States v. Marcus,
      560 U.S. 258, 263 (2010) (internal quotations omitted). The failure to provide a limiting instruction here
      does not appear to constitute such a structural error. See id.

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is “so conclusive,” United States v. Neal, 344 F.2d 254, 256 (6th Cir. 1965) (per curiam), or

“overwhelming” United States v. Dixon, 273 F.3d 636, 640 (5th Cir. 2001), the outcome of the

proceedings are not affected, and thus no prejudice will arise. This is the case here. Although the

introduction of prior convictions of similar offenses is always subject to potential misuse, the sheer

amount of testimony elicited at trial regarding Pego’s domestic abuses, as well as his own

incriminating attempts to conceal the crimes, assure us that no prejudice was incurred, and that

Pego’s substantial rights were not affected.

        Nevertheless, we are compelled to comment on the trial court’s failure to provide a limiting

instruction. Two cases, Evans v. Cowan, 506 F.2d 1248 (6th Cir. 1974) and Dawson v. Cowan, 531

F.2d 1374 (6th Cir. 1976), held that the respective district courts committed plain error when, under

similar circumstances, the courts failed to give a limiting instruction. We note that although Dawson

and Evans continue to afford defendants appropriate and necessary constitutional protections, the

duet does not impose a per se rule that it is plain and reversible error for the trial court to fail to sua

sponte give a cautionary instruction regarding evidence of prior misconduct. See United States v.

Cooper, 577 F.2d 1079, 1089 (6th Cir. 1978). Nor are we inclined to find so here, given the

extensive evidence of Pego’s guilt. However, we wholeheartedly “acknowledge that it would have

been the better part of discretion for the court sua sponte to have given a cautionary instruction

limiting the jury’s consideration of the evidence.” Id. Indeed, the risk of prejudice with respect to

similar acts and their forbidden propensity inferences are notoriously high. Accordingly, we advise

future courts to exercise an abundance of caution and circumspection when encountering such

scenarios.

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No. 13-1312, United States v. Pego


        Pego’s remaining arguments are largely without merit. He argues that the introduction of

certain threats which he made constituted improper prior bad act evidence, and that the failure to

give a limiting instruction with regard to the threats was unduly prejudicial. In his opening

statement, the prosecutor stated the following: “And as I mentioned before, he told her that if she

told anybody, he was going to kill her. And he also talked about this gentleman that disappeared

in Mt. Pleasant about five years ago, Auggie Floyd, who has never been found and he says, my

family got away with killing Auggie Floyd.” R. 50, PgID 376.

        Defense counsel objected to this statement and a sidebar was held. The judge, at the sidebar

conference, advised that it was “to be admitted as a result of the fact, as evidence of, a threat in the

context of the relationship between the Defendant and the woman.” Id. at 378. After the sidebar,

the prosecutor continued:

        So this Auggie Floyd that disappeared, you’re going to hear a little bit of background
        to see what’s going on. We’re not here to prove whether or not his family had
        anything to do with this case or not. That’s not the case we are here for today. The
        point is, he used the threat that his family was involved in this and we got away
        with that murder and I’ll get away with killing you . . . . So that’s how he used that.

Id. at PgID 378-79.

        During direct examination, the government elicited testimony to further establish the veracity

of these threats. R. 51 at 445, 531-32. Pego claims that the introduction of this testimony

constituted prior bad acts in violation of Federal Rule of Evidence 404(b).2 We disagree. The


               2
                  Pego also objects to the judge’s failure to provide a final limiting instruction. While it is true
      that one was never given in the final jury instruction, defense counsel never asked for one. In fact, after
      the court’s final jury instructions, the defense stated that they were satisfied and that they had no
      objections. See R. 52, Tr. III, PgID 718. Accordingly, Pego’s objection is waived unless he can show
      plain error affecting substantial rights. See United States v. Christian, 786 F.2d 203, 213-14 (6th Cir.
      1986). Again, on the basis of robust and conclusive evidence against the defendant and the prosecutor’s

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No. 13-1312, United States v. Pego


testimony was highly probative of Pego’s manipulation of his victims. The evidence showed that

he constantly threatened and intimidated his victims to dissuade them from telling the authorities,

which enabled him to continue the abuses. The forbidden inference, that he was a violent person

generally, and thus would continue to do violent things, is severely undermined by the massive

amount of evidence against Pego, and is, in any event, harmless beyond a reasonable doubt. United

States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013). Accordingly, we find no error.

        Next, Pego alleges multiple instances of prosecutorial misconduct, which are similarly

without merit. He first alleges that the prosecutor’s voir dire of a potential juror who ultimately was

not selected for trial was improper. The potential juror had been employed as a prison guard for

over 25 years. R. 50, Tr. I, PgID 312. The potential juror stated that if he were selected he would

evaluate a witness’s credibility for falsity. Id. at PgID 314. The prosecutor asked the potential juror

if, in his capacity as a corrections officer, he had experience with people who had lied. Id. at PgID

312. Pego primarily takes issue with this question posed by the prosecutor: “[in your time as a

corrections officer,] sometimes when people say they didn’t commit a crime or do something, it

doesn’t always mean that they didn’t?” Id. at 314. The potential juror answered yes. Id.

        Pego’s failure to object renders our review for plain error. Johnson v. United States, 520

U.S. 461, 466-67 (1997). Under these circumstances, this Court only reverses a conviction if we

determine that the defendant did not get a fair trial by a panel of impartial jurors. Irvin v. Dowd,

366 U.S. 717, 722 (1961). Pego argues that the prosecutor’s question was improper as it implied



      own cautions as to how the statement was to be used, the failure to provide a limiting instruction does not
      rise to the level of plain error.

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No. 13-1312, United States v. Pego


a special knowledge based upon facts outside the record. See United States v. Francis, 170 F.3d

546, 550 (6th Cir. 1999). The argument follows that the prosecutor implied to the other jurors that

the corrections officer (and the prosecutor) had a special knowledge of convicted criminals who

falsified testimony and that this would invite the other jurors to disregard the presumption of

innocence. This argument is groundless and does not demonstrate an abuse of discretion, let alone

plain error. It is within the scope of the prosecutor’s voir dire to ask potential jurors about their

experiences evaluating the quality of information they receive. Even still, this juror was not even

selected, further reducing the possibility that Pego was prejudiced. Accordingly, his argument fails.

       Pego also objects to the prosecutor’s opening statement on grounds that it improperly

introduced his prior violent history. The essential issue precluding Pego from succeeding on this

ground is that every reference of violent or otherwise criminal conduct articulated in the opening

statement was actually substantiated by trial testimony. To provide a tenor of the opening statement,

the prosecutor began by stating:

       We’re here today because the Defendant in this case is a violent, controlling
       manipulator who abuses women. He hits them, he kicks them, he slams their head
       into doors and walls, he strangles them to the point they can’t breathe. When they
       try [to] call for help, he breaks their phones, he breaks their laptops, any form of
       communication they have with the outside world.

R. 50, Tr. I, PgID 372.

       Again, Pego’s failure to object to this testimony limits our review to plain error only.

Johnson, 520 U.S. at 466-67. Of course, the prosecutor may not misrepresent the evidence, nor may

he make derogatory comments about the defendant. See Hodge v. Hurley, 426 F.3d 368, 384 (6th

Cir. 2005). However, it is well within the prosecutor’s discretion to inform the jury what he or she

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No. 13-1312, United States v. Pego


expects the evidence will show. United States v. Wells, 623 F.3d 332, 343 (6th Cir. 2010). The

evidence admitted at trial supported the prosecutor’s statements—as per the testimony, the evidence

did indeed show that Pego abused women, was violent, manipulated the abused, etc.3 Photographs

admitted at trial corroborated those aspects of the opening statement relating to Pego’s ability to

control his victims by destroying their contact with the outside world. Tr. II, PgID 439-44. Further

still, a phone call, verified to be from Pego, provided his apology to one of his victims. Tr. Ex. 49.

Under any metric, the opening statement, while forceful, did not mislead nor was it improper.

       During the prosecutor’s opening statement, the prosecutor also referenced the anticipated

testimony of victim T.H., whom he anticipated would testify as to an 18 month period in which Pego

sexually assaulted her. See Tr. I, PgID 387. This reference was based on T.H.’s grand jury

testimony, which was consistent with the prosecutor’s references. Upon direct examination,

however, T.H. recanted. Id. at 532-37. Instead of detailing a period of sexual assaults for a year and

a half, she stated that only two sexual assaults occurred. See R. 52, Tr. III, PgID 532-37. After

impeaching T.H., the government decided to voluntarily dismiss the counts which related to this

inconsistency. Id. at 583. It is unclear on what specific grounds Pego challenges this issue on

appeal, other than the fact that it was “prejudicial.” In any event, no objection was lodged, and

nothing “plainly erroneous” occurred. See Johnson, 520 U.S. at 466-67.

       Pego also objected to the testimony of A.H., who testified to multiple prior instances of

sexual misconduct Pego committed against her. Pego failed to object to this testimony at trial. On



             3
               Pego also takes issue with his characterization as a “batterer” in the prosecutor’s closing
     argument. R. 52 at 160-61. For the same reasons above, this argument is also groundless.

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No. 13-1312, United States v. Pego


appeal, Pego fails to acknowledge Federal Rule of Evidence 413(a), which explicitly permits such

evidence.4 The testimony falls squarely within the permitted ambit of the Rule, and is thus fatal to

his claim.

       Lastly, Pego challenges the government’s introduction of opinion testimony. At trial, the

government called Holly Rosen, who testified to the jury about certain issues pertaining to domestic

violence. See R. 52, Tr. III, PgID 600. According to her testimony, she “[was] to educate the jury

about batterer tactics and non-intuitive victim response and contacts so that [the jury] can make an

informed decision.” Id. at 602-03. On cross examination, defense counsel asked Rosen if she

formed an opinion, to which she replied: “I formed an opinion about agreeing to testify or not if it’s

within my scope.” Id. at 674. In clarifying as to what would be the appropriate scope of her

testimony, she later affirmed that she would not testify unless she believed that domestic violence

occurred. Id.5

       We review the decision to allow a witness to offer opinion testimony for an abuse of

discretion. United States v. Cunningham, 679 F.3d 355, 377 (6th Cir. 2012). On appeal Pego

claims that this “opinion testimony” runs afoul of Federal Rule of Evidence 702, and cites two cases

which stand for the proposition that an opinion witness may not provide their judgment as to the



              4
                 “In a criminal case in which a defendant is accused of a sexual assault, the court may admit
     evidence that the defendant committed any other sexual assault. The evidence may be considered on any
     matter to which it is relevant.”
               5
                 This was elicited on cross examination—the argument follows that, implicitly, she provided
     an opinion as to whether Pego was innocent or guilty, which would be forbidden, technically. See Berry
     v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994). Pego has not discovered a legal circumvention,
     however, as he has invited any potential error by posing the question himself. In light of Rosen’s multiple
     avowals that she was not called to provide an opinion on the likelihood of abuse, as well as the
     overwhelming evidence against Pego generally, we do not find that he has established the requisite
     prejudice. See United States v. Lawrence, 735 F.3d 385, 431 (6th Cir. 2013).

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No. 13-1312, United States v. Pego


credibility of witnesses on grounds that it would usurp the jury’s judgment. See United States v.

Whitted, 11 F.3d 782, 785 (8th Cir. 1993); United States v. Libby, 461 F. Supp. 2d 3, 7 (D.D.C.

2006). Pego’s argument is flawed because the opinion witness never rendered an opinion that could

be classified as usurping the jury’s task of gauging credibility or rendering an opinion on an ultimate

issue. None of Rosen’s testimony on direct examination offered an opinion as to the verisimilitude

of a battering charge. Nor was there anything else improper with Rosen’s testimony; Rosen was

highly qualified to offer the testimony and the trial judge correctly informed the jury as to how they

were to utilize her testimony. Accordingly, his challenge to this testimony is baseless.

                                        III. CONCLUSION

       In short, the evidence establishing Pego’s guilt was overwhelming. Though we advise

future district courts to implement appropriate precautionary measures when faced with the

introduction of prejudicial information, we see no reason to reverse Pego’s conviction in this

case. AFFIRMED.




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