                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0423n.06

                                          No. 13-1322

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                 )                            FILED
                                                          )                   Jun 11, 2014
       Plaintiff-Appellee,                                )               DEBORAH S. HUNT, Clerk
                                                          )
v.                                                        )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
STEVEN WILLIAM DEUMAN, JR.,                               )        COURT FOR THE WESTERN
                                                          )        DISTRICT OF MICHIGAN
       Defendant-Appellant.                               )
                                                          )
                                                          )



       Before: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. The facts of this case are unavoidably disturbing. A jury

convicted Steven Deuman of sexually assaulting his 15-week-old daughter in violation of

18 U.S.C. § 2241(c),   and    thereby   murdering   her       by   asphyxiation   in    violation   of

18 U.S.C. § 1111(a). Deuman now challenges his convictions on numerous grounds. We reject

all of his arguments and affirm.

                                               I.

                                              A.

       Deuman and Natasha Maitland had two children: a two-year-old son, S.D., and 15-week-

old daughter, E.D. They lived in a trailer with Deuman’s brother, Silvano Southbird, and

Southbird’s family. Deuman and Southbird were members of the Grand Traverse Band of

Ottawa and Chippewa Indians. Southbird owned the trailer, which was located within Indian
No. 13-1322
United States v. Deuman

country in Sutton’s Bay, Michigan. Ten people lived in the trailer; Deuman, Maitland, and their

two children shared one room.

       On the night of August 11, 2011, Maitland and Deuman had sex using a

condom. Afterwards, Deuman tied the used condom in a knot and tossed it on the floor beside

the bed. The next morning, Maitland woke up early for work and cleaned the room. She picked

up the used condom, its wrapper, and a soiled diaper off the floor, and threw them away in the

kitchen trash can. Maitland then placed a box of condoms on the nightstand next to the bed. She

did not shower that morning because the water heater was broken.

       Deuman was unemployed and stayed home to care for E.D. He knew that Maitland was

scheduled to work until 7:00 p.m. that evening. At 6:49 p.m., Deuman sent Maitland the first of

two text messages; both messages asked Maitland where she was. Deuman called Maitland at

7:05 p.m., and told her to call him back after she picked up her paycheck from her second

job. Maitland did so at 7:35 p.m., and told Deuman to meet her at the tribal gas station so that

she could pay to fill his motorcycle with gas. Deuman told Maitland to call back again when she

neared the gas station, which was a five-to-ten-minute drive from the trailer. Deuman then went

outside to smoke a cigarette with Southbird and his wife, Veronica Reynaga.

       Maitland called back at 7:45 p.m.       Deuman answered while smoking outside the

trailer. He asked Southbird and Reynaga to watch E.D. while he went to meet Maitland at the

gas station. Before he left, Deuman told Southbird and Reynaga that he was going to check on

E.D. (something he normally did not do). Deuman went into the trailer, quickly returned, and

said that something was wrong with E.D. Deuman led Southbird to the bedroom, where E.D. lay

on the bed, motionless. Deuman explained that earlier he had left E.D. in the middle of the bed

with a bottle, surrounded by blankets and pillows; and that when he walked into the room just


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then, he found E.D. on the floor, by the foot of the bed. Southbird told Deuman that they needed

to take E.D. to the hospital, immediately.

       At 7:47 p.m., Deuman called Maitland and said “get home now; get home now.” As

Maitland arrived home three minutes later, she saw Southbird’s car pulling out of the driveway,

headed towards Traverse City. Maitland pulled up to the trailer. Deuman exited Southbird’s car

with E.D’s lifeless body in his hands. Maitland checked for a pulse, but found none. E.D. was

blue, cold to the touch, and had a line of blood running from her mouth to her forehead.

       Maitland called 911 immediately after learning that neither Deuman or Southbird had

done so. Deuman grabbed the phone from Maitland and yelled at the dispatcher: “[E.D.] was

sleeping on the bed, I laid her on the bed to sleep, she’s not at the point of rolling over, she’s

three months old, I went to check on her, we were outside maybe ten minutes. And I go in and

she is unconscious.”

       Maitland told Reynaga to drive her and E.D. to the hospital. As they drove there, the 911

dispatcher told Maitland to pull to the side of the road and wait for an ambulance. Reynaga

pulled over and Maitland gave CPR to E.D. on the side of the road. A paramedic arrived and

also attempted CPR. An EMT then arrived and directed that E.D. be put into the ambulance.

The EMT then inserted a breathing tube into E.D.’s throat. He observed that E.D.’s airway

appeared deformed: instead of having a normal V-shape like the other infants he had treated

during his 24-year career, E.D.’s throat tissues had been pushed away, widening her throat to

more of a U-shape. The paramedics drove E.D. to the hospital.

       Meanwhile, Deuman had stayed at the trailer. He called out: “Oh, God, please don’t let

this happen to me.” Southbird told his brother that he should have gone to the hospital with

E.D., and gave Deuman $16 to fuel his motorcycle. Deuman went to the gas station and filled


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his gas tank. Then he went inside the gas station and filled out a tribal-discount form, which

saved him 76 cents.

         When Deuman arrived to the hospital, he yelled at the paramedics, “[y]ou killed my

fucking mom and now you killed my baby, too.” An emergency room doctor asked Deuman to

explain what happened to E.D. Deuman responded that he had gone back into the bedroom after

a smoke “and the baby was on the floor with blood around its nose.”

         At 8:50 p.m., a doctor pronounced E.D. dead. Soon after, the hospital allowed Maitland

and Deuman to see E.D.’s body in the trauma room. As they sat alone with their dead baby,

Deuman whispered to Maitland that he had found a condom in E.D.’s mouth. He had not told

this fact to Southbird, the 911 dispatcher, or the paramedics and doctors.

         The next day, Dr. David Start performed an autopsy on E.D.’s body. He concluded that

the cause of E.D.’s death was asphyxiation from a foreign object blocking her airway. Start

found no evidence that E.D. had fallen from the bed; and he determined that it was “not a

reasonable possibility” that the three-month-old E.D. could have grasped a condom, placed it in

her mouth, and sucked it in far enough to block her airway. Start concluded that E.D.’s death

was a homicide. He further determined that E.D.’s death was consistent with an adult penis

having been put in her mouth and blocking her airway, and that the oral penetration would not

necessarily have resulted in physical trauma to E.D.’s mouth.

         Twenty-eight hours after E.D.’s death, the FBI searched the trailer. On the bedroom

floor, the FBI found a used condom beneath a dirty diaper and several condom wrappers. The

box of condoms was on the bed. A forensic scientist discovered a sizeable blood stain on the

carpet next to the head of the bed, which later proved to be a mixture of bloody fluid from E.D.’s

lungs.


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        Later that day, FBI agents Robert Birdsong and Larry Stewart interviewed Deuman. He

told them that E.D. had been healthy the day that she died. Deuman also said that E.D. was

unable to hold a bottle by herself or grasp an item unless it was put in front of her. According to

Deuman, he put E.D. in the center of the bed with a bottle, and surrounded her with blankets and

pillows so that she could not roll off. Then he went outside to smoke a cigarette. Two-to-seven

minutes later he heard E.D. cry. He got a “bad feeling,” and went to check on her. He found

E.D. lying face down on the floor by the head of the bed. He picked her up and found an

unrolled condom in her mouth and blood on her lips. At that point, Agent Birdsong asked

Deuman how E.D. could have ended up on the floor with a condom in her mouth. Deuman

responded: “if you’re accusing me of sticking my dick in her mouth, then you’re a sick mother-

fucker.” At that point, no one had yet suggested to Deuman that he had done anything of the

sort.

        On August 16th, Birdsong met with Maitland and Deuman. Birdsong told them that E.D.

died of asphyxiation. Deuman then asked whether there was any damage to E.D.’s mouth.

Birdsong responded that there was none. Deuman placed his head in his hands, and exclaimed,

“[t]hank God.”    Deuman also asked whether any fluids had been found in E.D.’s mouth.

Birdsong responded that they were still awaiting the test results.

        Later that evening, Deuman and Maitland visited Deuman’s aunt, a member of the Grand

Traverse Tribe. Deuman told his aunt that E.D. had rolled off the bed and that Deuman had

found her unconscious. His aunt said that Deuman’s story did not make sense, and that perhaps

E.D.’s death could be explained by “bear walking”—i.e., there were good families and bad

families, and the bad families were bear walkers, who could shape-shift into bears. Bear walkers

could also take a person’s DNA and become that person.


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       The next day, Agents Birdsong and Fred Berry, and Detective Richard Campos (Tribal

Police) drove Deuman to Flint for a polygraph examination. During the drive, Deuman told the

agents that E.D. had communicated to him when he saw her body at the funeral home. E.D.

supposedly said that everyone should leave the trailer because it was haunted by evil spirits. On

the drive home after the polygraph, Deuman said that he thought it was possible that he had

killed E.D. while being bear-walked by one of the evil spirits. Deuman also said that there was a

“50 percent” chance that he would be able to tell them what actually happened to E.D., an

estimate he revised to “70 percent,” and ultimately to “80 percent.” But first he wanted to talk to

Maitland. The agents dropped Deuman off at the hotel where he and Maitland were staying.

       Deuman took Maitland out to the hotel’s golf course for a talk. He told her that he might

have blacked out the day that E.D. died, and that he thought that he had been bear-walked.

       A forensic analyst tested the used condom found on the bedroom floor. On the outside of

the condom she found DNA only from E.D. On the inside was DNA from both Maitland and

Deuman. A forensic expert later explained that Maitland’s DNA could have been transferred to

Deuman’s penis when the two had sex the night before.

       The FBI arrested Deuman on August 18th.

                                                B.

       A grand jury indicted Deuman, charging him with the murder of his 15-week-old

daughter by aggravated sexual abuse. After an eight-day trial, a jury convicted Deuman of

aggravated sexual abuse in violation of 18 U.S.C. § 2241(c), and first-degree murder in violation

of 18 U.S.C. § 1111(a). The district court sentenced Deuman to life imprisonment on each

conviction. This appeal followed.




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                                                II.

                                                A.

       Deuman first challenges the sufficiency of the evidence supporting each of his

convictions. Specifically, Deuman contends that there was evidence that E.D. had been

accidentally asphyxiated, but no evidence that he had sexually assaulted E.D. or caused her

death. Our only task is to determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in original).   Circumstantial evidence alone can sustain a guilty verdict.      United States v.

Martinez, 588 F.3d 301, 314 (6th Cir. 2009).

       The evidence of Deuman’s guilt was nearly overwhelming here. Deuman was E.D.’s

sole caretaker at the time of her death. She could not grasp objects on her own. She was

incapable of rolling over; and she was certainly incapable of crawling over the barrier of blankets

and pillows that Deuman supposedly had built up around her. There was also no physical

evidence that E.D. had fallen off the bed. Maitland testified that she threw away the previous

night’s used condom and the condom’s wrapper, and had placed the box of condoms on the

nightstand. But FBI agents found a used condom on the bedroom floor beneath a dirty diaper,

condom wrappers, and the box of condoms on the bed, suggesting that all of these items had

been moved from where Maitland had put them. Forensic analysis established that the used

condom found in the bedroom had been in E.D.’s mouth and on Deuman’s penis. None of

E.D.’s DNA was on the inside of the condom and none of Maitland’s was on the outside. Dr.

Start testified that E.D.’s death was consistent with an adult penis having been put in her mouth,

blocking her airway, and asphyxiating her. Start also rejected the theory that E.D. could have


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United States v. Deuman

rolled off the bed, picked up a condom, and swallowed it. Dr. Debra Simms, a board-certified

child-abuse pediatrician, testified that, in most cases of penile-oral contact between adults and

children—including infants as young as six days old—there is no physical trauma found in the

victim’s mouth. Simms also opined—just as Start did—that an adult penis was capable of

blocking an infant’s airway, causing asphyxiation.

       To all that, add Deuman’s complete lack of credibility. Deuman repeatedly told

investigators and family members that he had put E.D. on the bed to feed her a bottle. But the

autopsy revealed that she had no formula in her stomach. He said that he had warmed the bottle

by running it under warm water from the kitchen’s faucet. But the trailer’s water heater was

broken. He told Southbird, moments after he found E.D. unconscious, that E.D. had been face

down at the foot of the bed. But the pool of blood from E.D.’s lungs was found on the floor next

to the head of the bed. And he held E.D.’s breathless, cold, blue body, and saw the blood

running from her mouth without even calling 911.

       The government also presented propensity evidence that supported the jury’s finding that

Deuman had sexually abused and killed E.D. When Deuman was 14, he babysat six-year-old

S.M.P. and her five-year-old brother, C.J.P. S.M.P. testified that Deuman forced the two young

children to watch a pornographic movie and then reenact the sex acts they had just

watched. S.M.P. also testified that Deuman twice forced her to perform oral sex on him; the

second time, Deuman thrust his penis so far into her throat that she gagged. Deuman’s own

mother testified that Deuman had admitted to sexually assaulting S.M.P. and C.J.P. during an

inpatient sex-offender treatment program. When Deuman was 18, he had a sexual relationship

with A.K.P. when she was 11 or 12 years old. A.K.P. testified that sex and oral sex were very




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important to Deuman, and that he would verbally abuse her when she declined to have sex with

him.

         From all of this evidence, a rational jury could have easily found that Deuman choked

E.D. to death by putting his penis in her mouth.

         Deuman responds with a theory of E.D.’s accidental death based on selective trial

evidence and implausible conjecture. He asserts that “[Lucky] [t]he dog had a habit of removing

items from the household garbage, including the used condoms, [and strewing them] throughout

the residence,” that E.D. rolled off the bed (notwithstanding the barrier of blankets around her

and E.D. never before having rolled over), and that she accidentally swallowed a used condom

left on the carpet by the dog (despite E.D. being unable to pick up the condom). Suffice it to say

that the jury could have rejected this story.

                                                   B.

         Deuman also challenges four of the district court’s evidentiary decisions. We review

these decisions for an abuse of discretion. United States v. Wagner, 382 F.3d 598, 616 (6th Cir.

2004).

                                                   1.

         Deuman argues that the district court abused its discretion by admitting S.M.P’s and

A.K.P’s testimony about his past sexual assault and child molestation.         The district court

admitted S.M.P.’s and A.K.P.’s testimony under Federal Rules of Evidence 414. (The court also

admitted their testimony under Rule 413, but we need not address that alternative basis.) Rule

414 states, “[i]n a criminal case in which a defendant is accused of child molestation, the court

may admit evidence that the defendant committed any other child molestation.” The court found

that Deuman’s prior molestation and sexual assault of S.M.P. and A.K.P. were admissible under


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Rule 414, and then admitted the evidence after balancing its probative value and prejudicial

effect pursuant to Federal Rule of Evidence 403.

       Deuman does not contest the district court’s determination that each woman’s testimony

was admissible under Federal Rules of Evidence 414. Nor could he: Rule 414 defines a “child”

as a person below the age of 14, and “child molestation” as a crime under federal law or under

state law, involving, among other things, “contact between the defendant’s genitals or anus and

any part of a child’s body.” Fed. R. Evid. 414(d). Deuman’s oral rape of S.M.P. when she was

six years old meets that definition. The same is true for Deuman’s rape of A.K.P. when she was

11 or 12 years old.

       Instead, Deuman argues that the district court abused its discretion in two ways. First, he

contends that S.M.P.’s and A.K.P.’s testimony was irrelevant under Rule 401. The standard for

relevancy is extremely liberal: evidence is relevant “if it has any tendency to make a fact more

or less probable than it would be without the evidence.” Fed. R. Evid. 401. Rule 414 itself was

a “strong legislative judgment that evidence of prior sexual offenses” have probative value and

“should ordinarily be admissible.” United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001)

(internal quotation omitted). We have no reason to depart from that judgment here: that

Deuman raped two other children tends to make it more likely that he raped E.D.

       Second, Deuman contends that the district court abused its discretion when it applied the

Rule 403 balancing test. We review the district court’s Rule 403 ruling to admit certain evidence

for an abuse of discretion, “maximiz[ing] the probative value of the evidence and minimiz[ing]

its potential prejudice to the defendant[s].” United States v. Bartholomew, 310 F.3d 912, 921

(6th Cir. 2002).




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          In this case, Deuman was accused of forcing oral sex on his 15-week-old daughter while

he babysat her.      The evidence of Deuman’s prior child molestations was highly probative

because they included similar acts under similar circumstances. Deuman repeatedly molested

six-year-old S.M.P. and five-year-old C.J.P. when he babysat them. He also forced oral sex on

S.M.P. on two different occasions. Deuman’s statutory rape of 11-or-12-year-old A.K.P. also

included oral sex.

          Deuman is correct that S.M.P.’s and A.K.P.’s testimony was highly prejudicial. But

much of that prejudice was fair. See Fed. R. Evid. 403. The district court did not abuse its

discretion. And for the same reasons, a fortiori, the admission of this evidence did not deprive

Deuman of his right to a fair trial.

                                                2.

          Deuman next argues that the district court wrongly applied Federal Rule of Evidence 412

to prevent him from cross-examining S.M.P and A.K.P. about their past sexual conduct with

other men. Rule 412 prohibits “evidence offered to prove that a victim engaged in other sexual

behavior.” The court disallowed cross-examination about the witnesses’ past sexual conduct in

part because Deuman had failed to comply with Rule 412’s notice requirement. Fed. R. Evid.

412(c).

          Before us, Deuman contends S.M.P. and A.K.P. are not “victims” under Rule 412

because they were not the victims in this case. But Rule 412 defines “victim” to include “an

alleged victim.” Id. That definition uses the indefinite article “an” as opposed to the definite

article “the.” By its terms, then, the rule applies to any witness who has been a victim of sexual

assault, not just a witness who was the specific victim of the pending case. Moreover, Rule

412’s Advisory Committee Notes state that the rule “extends to ‘pattern’ witnesses in both


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United States v. Deuman

criminal and civil cases whose testimony about other instances of sexual misconduct by the

person accused is otherwise admissible.” Thus, Deuman’s argument that Rule 412 did not apply

to S.M.P. and A.K.P. is meritless.

                                                3.

       Deuman also argues that the district court abused its discretion by admitting four

photographs of E.D.—two of which showed her healthy and alive, and two of which showed her

in the hospital soon after she died. The post-mortem photos of E.D. showed some blood coming

out of E.D.’s nose and the breathing tube that had been installed by the EMT. Deuman contends

that these photos had minimal probative value, but were highly prejudicial because they

“arouse[d] the emotions of the jury[.]”

       We consider the pre- and post-mortem photos separately. The pre-mortem photos were

relevant because E.D.’s appearance in them tended to disprove Deuman’s defense that she would

have been capable of surmounting the barrier on the bed and picking up a condom and putting it

in her mouth. These photos were also minimally prejudicial.

       The post-mortem photographs are more problematic.              The government says these

photographs were relevant as background to show the manner in which E.D. had been intubated.

But we do not see how that fact—the manner in which E.D. had been intubated—tended to make

more or less likely any material fact in this case. Meanwhile, the photographs were prejudicial,

though not terribly so. We therefore have our doubts about the district court’s determination that

the post-mortem photographs passed muster under Rule 403. But in any event the admission of

these photos was harmless, given the nearly overwhelming strength of the government’s case.

See United States v. Willoughby, 742 F.3d 229, 235 (6th Cir. 2014).




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                                                 4.

       Finally, Deuman argues that the district court mistakenly allowed the government to

introduce evidence of his prior bad acts under Federal Rule of Evidence 404(b). Specifically,

Deuman contends that the court should have excluded Maitland’s testimony that Deuman

became overstimulated during oral sex, and sometimes grabbed Maitland’s head and thrust his

penis far enough into her throat to make her gag. Deuman objected to that evidence at trial. The

district court admitted the evidence without stating whether the testimony constituted “other

act[]” evidence under 404(b); but the court did say that, “[j]ust for the record, the relevance [of

the testimony] is not substantially outweighed by any prejudice in this particular situation.”

       Rule 404(b) prohibits evidence of “other act[s] . . . to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the character.” That

was arguably the basis upon which this testimony came in here:                for even under the

government’s reasoning, Maitland’s testimony was offered to show that Deuman had a

propensity to get carried away during oral sex, which explained how he could have killed E.D.

while sexually abusing her.

       But the admission of this testimony likewise was harmless. Evidence is harmless if ‘it

appears beyond a reasonable doubt’ that the error made no difference to the verdict.”

Willoughby, 742 F.3d at 235 (quoting United States v. Freeman, 730 F.3d 590, 595 (6th

Cir.2013). And here, Maitland’s testimony that Deuman sometimes gagged her during oral sex

was repetitive of S.M.P.’s far more damaging—and properly admitted—testimony that Deuman

did the same thing to her when she was only six years old. Thus, we are confident beyond a

reasonable doubt that Maitland’s testimony on this point had no effect on the verdict.




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                                         *     *    *

      The district court’s judgment is affirmed.




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