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United States v. Gia

filed*fn*: December 28, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
STEWART GIA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. D.C. No. CR-92-00290-01-EH. Earl H. Carroll, District Judge, Presiding

Before: Hug, Pregerson, and Wiggins, Circuit Judges

MEMORANDUM

Stewart Gia, an Indian, was convicted of five counts of aggravated sexual abuse of an Indian child in Indian country, in violation of 18 U.S.C. §§ 1153 (offenses committed within Indian country) and 2241(c) (sexual acts with persons under twelve years of age). His convictions stemmed from sexual assaults committed on I.L. ("L."), an Indian girl who was 10 and 11 years of age at the time of the assaults. On appeal, Gia claims that the district court made improper comments during voir dire, that the court should have granted Gia's motion for judgment of acquittal, and that his Sixth Amendment right to confront his accuser was violated because the district court did not allow him to examine L. regarding her sexual history. We reject each of these arguments and affirm Gia's convictions.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction pursuant to 28 U.S.C. § 1291 based on Gia's filing of a timely appeal.

BACKGROUND

Stewart Gia is a Yavapai Apache Indian. His victim, L., is a River Verde Indian. In June of 1991, Gia confessed that he had sexually assaulted L. on the following dates: July 4, 1990; September, 1990; October 31, 1990; March, 1991; and April, 1991. The five counts of aggravated sexual abuse on which he was convicted correspond to these dates. At the time of the assaults, Gia was the live-in boyfriend of L.'s mother.

At trial, the government presented the testimony of L., of L.'s mother, and of the doctor who examined L. The doctor testified that L.'s hymen was not intact and that she was infected with trichomoniasis vaginalis, a sexually transmitted disease that is passed only by sexual intercourse and insemination. L. testified that Gia assaulted her every few weeks by putting his penis in her "private parts" and ejaculating. L.'s mother testified that Gia was her boyfriend and that during this time she also developed trichomoniasis vaginalis. The government presented Gia's confession through the testimony of an FBI agent.

Gia's counsel wanted to cross examine L. regarding her sexual history. Specifically, he wanted to question her regarding whether a man named Alfredo could have caused L.'s infection. Before trial, the government had indicated to Gia's counsel that a man named Alfredo had previously molested L. with his hand. Gia's counsel also wanted to question L. regarding whether her father had sexually assaulted her. At the time of Gia's assault, L.'s father was in prison, where he had been for six or seven years because of a child molestation conviction. The district court denied Gia's request to cross examine L. on these issues.

Discussion

I. The District Court's Comment to the Jury during Voir Dire did not Constitute Error.

Gia objects to the district court's statement during voir dire that the evidence would "reasonably show, or is expected to show" that Gia and L. were Indians. Gia claims that this comment "effectively removed" from the jury the responsibility of determining whether Gia was an Indian, a jurisdictional requirement under 18 U.S.C. § 1153.

Gia did not object to the district court's comment at trial. Accordingly, the district court's alleged misconduct is reviewed for plain error. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989). "A plain error is a highly prejudicial error affecting substantial rights." United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992) (citation omitted). The district court's comment was not plain error; if it was error at all, it was harmless.

The district court made the comment in the context of explaining to the prospective jurors that the reason Gia's case was in federal court was because he is an Indian. Immediately following the court's alleged improper statement, the court asked the potential jurors whether they were in any way affected by the fact that the Gia and the victim were Indians. Following this question, the court clarified that the "jury will have to decide whether [Gia and L. are] members of the tribe or if the acts occurred [on the reservation]." Moreover, at the end of trial the court instructed the jury that to convict Gia, they had to ...


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