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United States v. Antone

filed: December 15, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ERNESTO ANTONE, SR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. D.C. No. CR-91-0062-RMB. Richard M. Bilby, Chief Judge, Presiding.

Before: Procter Hug, Jr., Betty B. Fletcher, and Melvin Brunetti, Circuit Judges. Opinion by Judge Hug.

Author: Hug

HUG, Circuit Judge:

Ernesto Antone, Sr. ("Antone") appeals his convictions for sexual abuse of a minor in violation of 18 U.S.C. §§ 1153 and 2243(a) and sexual contact with a minor in violation of 18 U.S.C. §§ 1153 and 2244. Antone argues that the district court's denial of his motion to compel production of the minor victim's psychiatric records violated his right to due process and his Sixth Amendment right to confront the witnesses against him. In addition, Antone contends that the district court's decision to allow a child psychiatrist to testify to general behavioral characteristics exhibited by victims of child sexual abuse constituted error because the psychiatrist's testimony improperly bolstered the testimony of the minor victim in this case.

The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I. BACKGROUND

Antone was charged in an indictment with five counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 1153 and 2243(a). He was accused of sexually abusing his 14-year-old niece, Darlene,*fn1 in his home. Antone's house had been occupied by Darlene's deceased grandfather and was a family gathering place. After school in Sells, Arizona, Darlene frequently went to her uncle's house to wait for her mother to pick her up and take her home to Topawa, 10 miles away. It was during these after-school periods that the incidents of sexual abuse were alleged to have occurred.

Prior to trial, defense counsel learned from another family member that Darlene had been in counseling for psychological problems, including lying and stealing. In addition, defense counsel learned that Darlene had described to authorities not only her victimization by Antone, but also incidents of sexual molestation by her deceased grandfather and a cousin six to seven years earlier. It was during that earlier time that Darlene began to exhibit behavioral problems, clashed with her mother, took paperclips, chalk, and other small items from school, and took some money from her mother's purse. Darlene's mother responded by taking Darlene to Indian Health Services for counseling, on and off, for several years.

Antone attempted to subpoena Darlene's counseling records, but the Tohono O'Odham Nation and its Psychological Services Program refused to produce them. Antone then filed a motion to compel production of the records. The district court reviewed the records in camera, denied the motion, and ordered the records filed under seal.

Antone also filed a motion in limine to preclude the Government from introducing expert testimony concerning general behavioral characteristics of sexually abused children. Antone renewed both motions immediately prior to jury selection. The district court denied the motions.

At trial, Darlene testified to two incidents of digital penetration and three incidents where Antone "pulled her pants and underwear down, then unzipped his pants, laid on top of her and rubbed his penis against her vagina for three to four minutes." Darlene admitted that she had seen a counselor, on and off, since grade school. She stated that she had last seen a therapist two to three weeks prior to telling a school counselor that she had been sexually abused. Darlene also admitted that although several relatives and a friend lived near Antone's house, she had frequently and voluntarily returned to his home throughout the period of abuse.

Dr. Herschel Rosenzweig, a child psychiatrist, testified to the general characteristics of sexually abused children. Dr. Rosenzweig testified that it is not unusual for children to keep the fact that they are being sexually molested to themselves or to voluntarily return to their abusers.

A jury found Antone guilty of three counts of sexual abuse of a minor and two counts of the lesser included offense of sexual contact with a minor. The district court sentenced Antone to concurrent terms of 41 months of imprisonment for each of the sexual abuse counts and 24 months of imprisonment for each of the sexual contact counts. The district court also imposed terms of supervised ...


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