Appeal from the United States District Court for the District of Arizona. D.C. No. CR-94-00280-RCB. Robert C. Broomfield, District Judge, Presiding.
Before: Alfred T. Goodwin and Stephen Reinhardt, Circuit Judges, and Samuel P. King, District Judge*fn*. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Defendant, Keith Frederick, was charged with three counts of Aggravated Sexual Assault against his stepdaughter, S.F., all arising out of a single incident alleged to have occurred in June of 1992. He was convicted on two counts and sentenced to 188 months in jail. He raises a number of issues on appeal, including prosecutorial vouching, improper comments by the prosecutor about defendant's counsel, and prejudicial testimony by government witnesses suggesting that he had committed similar offenses against others. We reverse because of the cumulative effect of the errors.
FACTS AND PROCEDURAL HISTORY
Frederick was tried and convicted of molesting his ten-year old step-daughter, S.F., within the confines of an Indian reservation. The government and the defendant agree that the facts set forth in the indictment and at trial derive almost entirely from statements made by the alleged victim, who was 12-years-old at the time she testified in district court. S.F.'s statements at trial, and prior statements to investigating officers, were, understandably, sometimes confused and contradictory.
Sometime before January 1987, Frederick married Tracy F., S.F.'s mother. During 1987, Frederick, Tracy, and S.F. moved from Tucson, Arizona to a trailer on the Pima-Maricopa Indian Reservation near Phoenix and Scottsdale, Arizona. At some unspecified date within the next two years S.F. moved away from her mother and step-father, Frederick, into the house of her maternal grandmother, Theresa Miguel, in Truxton, Arizona. Tracy and Frederick continued to live together on the Reservation and S.F. visited during summers.
S.F. claims that Frederick molested her in his bed in the presence of two of her sleeping siblings sometime in 1990. ER 13-19. S.F. placed the date by remembering that her mother was away at the hospital giving birth to her sister, K. Although S.F. did not give a precise date at trial, her mother Tracy testified that her daughter K. was born in April. T.R. Dec. 14, 1995 at 154. Although Frederick was not charged with this alleged incident of molestation, the jury heard S.F.'s testimony about it as well as about at least one other uncharged offense. S.F. was permitted to testify that she was molested sometime after June 1993, an incident that allegedly happened one year after the events set forth in the indictment. ER 65.
In June of 1991, Frederick and Tracy legally separated; however, they continued to see each other until their divorce was final in August of 1993. The testimony does not clearly account for Frederick's whereabouts between June 1991 and the time of his divorce from Tracy, but S.F. testified that he was living in her mother's trailer in June 1992, when he allegedly committed the offenses for which he was tried. ER 33-35. According to a stipulation, Frederick was in tribal jail on an unrelated matter for the month of July 1992. T.R. Dec. 15, 1995 at 34.
S.F. went to Bible Camp in Albuquerque, New Mexico from June 13, 1992 until June 17, 1992. ER 33. After camp she returned to her mother's trailer on the reservation. S.F. claims that the "three things" that later became the three counts for which Frederick was indicted and tried happened sometime between June 18, 1992 and July 1, 1992. ER 38-9.
Approximately one year later, S.F. told her cousin, H.L., that Frederick had molested her. ER 42-3. Both S.F.'s aunt, Veronica, who is H.L.'s mother, and S.F.'s grandmother, Theresa Miguel, heard about the alleged molestation. Theresa told the story to a neighbor, Officer Geionety, a police officer. T.R. Dec. 15, 1995 at 184-85. Following an investigation in which Officer Geionety, Tribal Officer Sapcut and FBI Agent Garcia all participated, the grand jury indicted Frederick on three counts of aggravated sexual assault. The crimes were all alleged to have occurred on an Indian reservation. The indictment read:
During the month of June 1992, in the District of Arizona, within the confines of the Salt River Pima- Maricopa Indian Reservation, Indian Country, the defendant KEITH FREDERICK, an Indian, did knowingly engage in and attempt to engage in a sexual act with . . . "S.F.," a minor female child who had not attained the age of 12 years, that is[:]
[Count 1] the penetration, however slight, of the genital opening of . . . "S.F.," by a finger, with the intent to abuse, humiliate, harass, or degrade . . . "S.F.," or arouse or gratify the sexual desire of KEITH FREDERICK, in violation of Title 18, United States Code, Sections 2241(c), 2245(2)(C) and 1153(a);
[Count 2] contact between the penis and the vulva, with . . . "S.F.," a minor female child who had not attained the age of 12 years, in violation of Title 18, United States Code, Sections 2241(c), 2245(2)(A) and 1153(a);
[Count 3] contact between the mouth and the penis, with . . . "S.F.," a minor female child who had not attained the age of 12 years. In violation of Title 18, United States Code, Sections 2241(c), 2245(2)(B) and 1153(a).
After a two-day trial, the jury returned verdicts of guilty on counts one and three of the indictment, and not guilty on count two. CR 49. The district court denied a number of motions for acquittal and sentenced Frederick to 188 months on each count, to be served concurrently, followed by 60 months supervised release, restitution of $86.34, and $1,000 fine. ER 161. Frederick filed his notice of appeal the same day. ER 165.
Sufficiency of the Evidence
Frederick contends that the district court erred by denying his motion for a judgment of acquittal because the evidence introduced at trial was insufficient to support a verdict of guilty beyond a reasonable doubt. Specifically, Frederick argues that because the prosecution's case relied entirely on the "self-contradictory and confused" testimony of the 12-year-old S.F., it cannot support the jury verdict. In addressing Frederick's contention, we must determine whether the evidence, viewed in the light most favorable to the Government, would permit any rational trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); United States v. Lim, 984 F.2d 331, 337 (9th Cir.), cert. denied, 124 L. Ed. 2d 692, 113 S. Ct. 2944 (1993).
Frederick relies on United States v. Barker, 967 F.2d 1275 (9th Cir. 1991), to support his claim that a single witness' self-contradictory and confused testimony is insufficient to support a conviction.*fn1 Barker was accused of submitting false claims for wages and overhead costs against the United States while working under government contract. The government's only witness concerning the counts on appeal had no first-hand knowledge about whether Barker worked on the days he claimed. Instead, he based his Conclusions on documents that the witness had reviewed. Id. at 1277. During cross-examination the witness undercut his earlier testimony by stating, "I am not saying they did not work on those days. I am - the daily journals do not support the hours requested." Id. The Barker Court concluded:
The jury, the Judge, and we on appeal are in exactly the same situation as [the government's witness]. We do not and cannot know whether the Barkers worked on Sunday, May 25, 1986. A self-contradictory report, contradicted on the vital point by all the other contemporary reports, proves nothing. Id.
There is no similarity between this case and Barker. In Barker the government's witness conceded that he had no personal knowledge of the commission of the charged offense. S.F. testified that she personally experienced Frederick's crimes.
On appeal, Frederick identifies portions of S.F.'s testimony in which she either contradicts herself or admits uncertainty about what happened and where and when it happened. Blue brief, p. 12-4. At trial, S.F. did contradict herself at times and admitted uncertainty. Some parts of her testimony consist of her simply responding "yes" or "no" to "leading" questions. At other times, however, she gave fairly precise and clear testimony about specific incidents, including those charged in the indictment. T.R. Dec. 14, 1994 at 84-89. The critical point on appeal is whether the evidence was sufficient to support a finding that the offenses took place on an Indian reservation, and thus whether federal jurisdiction existed. Although the government's evidence was certainly not overwhelming in general, and although the evidence regarding the location of the alleged crimes was sketchy, it was not so inconclusive as to require the panel to overturn the jury verdict on the ground of insufficiency. See generally United States v. Hodges, 770 F.2d 1475, 1478 (9th Cir. 1985) ("Questions of credibility are for the jury to decide and are generally immune from appellate review."). The closeness of the case is relevant, however, to our subsequent determination regarding the prejudicial effect of the errors that did occur.
Frederick also specifically argues that his conviction on Count One should be reversed because S.F. "omitted any mention that she was digitally penetrated." Blue brief, p. 13. While S.F. failed to mention the digital penetration by name, she answered "yes" to the following question:
Is there a time that he did three things to you, three different things, that he touched you, and put his private place inside of yours and made you put your mouth on his private?
ER 38. The government claims that the touching clause referred to the charged digital penetration and in the context of all the testimony that characterization is plausible. Certainly, a reasonable juror could so have construed it.
Frederick contends that the district court erred when it denied his motion for a mistrial after two government witnesses had made statements during their testimony that suggested that Frederick had engaged in sexual misconduct with children other than S.F. The standard of review for the denial of a mistrial is abuse of discretion. United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985). The burden is on the defendant to show that the district court abused its discretion in denying the motions. Tisnado v. United States, 547 F.2d 452, 460 (9th Cir. 1976).
During discovery the government notified the court that it intended to produce evidence of Frederick's prior sexual misconduct with other children. C.R. 32R The district court granted Frederick's motion to preclude such testimony under Rule 404(b) of the Federal Rules of Evidence. ER 6; R.T. Dec. 14, 1995 at 23. Frederick contends that despite the court's ruling, the two law enforcement witnesses who testified nevertheless "both used their opportunity on the witness stand to introduce the prohibited topic." Blue brief, p. 16. He objected to the officers' misstatements and twice moved for a mistrial based on their prejudicial effect. ER 91-4, 101-3. The district court denied both motions. ER 94, 103.*fn2
Frederick contends that the jury heard two inadmissible statements that prejudiced him. First, he points to the following exchange in open court between ...