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United States v. Gonzales

United States District Court, E.D. Washington

June 14, 2018


          ORDER DENYING § 2255 MOTION


         BEFORE THE COURT is Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 170). Defendant is represented by Matthew Campbell of the Federal Defenders of Eastern Washington and Idaho. Assistant United States Attorney Allyson Edwards now represents the United States. The Court-having reviewed the motion, the response and reply, and the record and files therein-is fully informed. For the reasons discussed below, the Court denies Defendant's Motion.

         Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts, this Court determines that no evidentiary hearing is warranted. The transcripts of the proceedings and sworn testimony provided at trial resolve this motion.


         1. Whether the introduction of a child victim's prior consistent statement that Defendant committed under-the-clothes touching constitutes constitutionally ineffective assistance of counsel when Defendant also confessed to under-the-clothes touching of that child.

         2. Whether counsel provided constitutionally ineffective assistance on direct appeal by failing to argue that the exclusion of alleged exculpatory statements Defendant made during an interview with law enforcement violated his due process rights such that other portions of his confession should have been considered in fairness, not just the inculpatory statements.


         On July 25, 2013, the grand jury returned a Second Superseding Indictment which charged the Defendant with three counts of Aggravated Sexual Abuse of a Minor in violation of 18 U.S.C. § 2241(c) (skin-to-skin contact) (Counts 1, 2 and 4), and two counts of Abusive Sexual Contact with a Minor in violation of 18 U.S.C. § 2244(a)(5) (through-the-clothing contact) (Counts 3 and 5). ECF No. 68. These charges encompass three different victims under the age of twelve, on five separate occasions.

         The Government filed a motion in limine to preclude Defendant from eliciting on cross-examination from the agents that interviewed him, self-serving hearsay statements of the Defendant. ECF No. 82. The Government argued that while the Defendant's statements are not hearsay when offered by the Government as admissions by party opponent pursuant to Fed.R.Evid. 801(d)(2)(A), such statements, when offered by the Defendant for their truth, are inadmissible hearsay pursuant to Fed.R.Evid. 801(c). The Government did not identify any of these statements it sought to preclude.

         Again, without any reference to any particular statement or exculpatory evidence, at the pretrial conference Defendant's counsel argued that:

“the failure to introduce those statements would somehow or other suggest to the jury that the defendant in some form or other doesn't have any explanation for his behavior here. And it would be incomplete to allow the government to only introduce those statements that are negative while allowing -- and not allowing the introduction of those statements about my wife came into the house when that occurred.
* * * And certainly, one of these allegations involves the claim that he was -- the girl did not have clothes on or was not dressed at the time that these occurrences occurred. The wife, when she was interviewed regarding that, said that she had come home. She doesn't remember any occasion when there were children in the house that were not dressed or were disrobed or something of that nature. And the defendant, I think, indicated that - I think the police made some sort of an accusation that - that the children were not dressed when the --when the woman came -- the mom came -- the wife came home. And his statement indicated that he -- that she was dressed and that that did not happen, which is supported by the statement that the wife made to law enforcement when they went and interviewed her and - suggesting that these are merely self-serving statements and not statements of what his recollection of the events is, although I have to say, Your Honor, he made a lot of very negative statements.
The statements that he made that were helpful to him in this case are not that many or not that great. But to not allow the introduction of the complete interview I think would not be a complete and fair expression of what occurred for the jury and, indeed, might deny the defendant his due process rights as to the interview that occurred in this case.

         ECF No. 151 at 81-82 (emphasis added). This Court ruled:

The defendant does have the option -- he can call his wife and he can call, if he so elects, to testify himself. So it isn't denial of his due process rights. It only assures that those statements that are made are sworn to by individuals capable of testifying and being subject to cross-examination. And so it's not a denial of due process to require him to put on witnesses to testify to that. So I will grant ECF No. 82, the motion in limine brought by the government.

         ECF No. 151 at 83.

         On September 16, 2013, the jury trial commenced. At trial, FBI Special Agent Jason Benedetti testified about Defendant's admissions made during an interview with law enforcement on January 17, 2013. Defendant admitted being sexually attracted to children for as long as he could remember. ECF No. 152 at 51 (sealed transcript). With respect to victim E.A., Defendant admitted touching her a total of six times in a sexual way. Id. Defendant described an incident occurring in about July 2012 when he was driving E.A. home from his house (Count 1). Defendant asked E.A. to take her pants down and he reached over and rubbed her vaginal area with his hand and then asked her to take her hand and rub his penis over his jeans - which she did. Id. at 56. Defendant described another incident when he was alone with E.A. in the living room of his home and he asked E.A. to take her pants down, which she did and he then rubbed her vaginal area, skin-to-skin contact. Id. at 54-55 (Count 2). Defendant demonstrated how he used his right hand to accomplish this. Id. at 55.

         Defendant also admitted that when K.A. came over, he would touch her but then Defendant immediately stated that he never touched her, he just liked to look at her. Id. at 58.

         Defendant also admitted to touching N.B. in a sexual way. Id. at 70. He described an incident when he was repairing her bike, found her standing in his kitchen looking out the window, away from him. Id. He came up behind her, reached his hands around her and touched her vaginal area over her clothes. Id. She turned around with a mad look on her face and he backed off. Id.

         On cross-examination, it was established that there was no recording of Defendant's interview. Id. at 106. The cross examination by the defense challenged the bias of tribal members, id. at 86-90, the opportunity of the girls to fabricate and to talk with each other about the investigation, id. at 89, the negative interactions between Defendant's family and one of the victim's father, id. at 91, and established that the Defendant had been cooperative throughout the interview, id. at 108. No. exculpatory or other statements of the Defendant were sought to be introduced.

         E.A. testified at trial that she was then 10-years old. ECF No. 128 at 6 (sealed transcript). E.A. explained that she used the words “private” for the circle she placed on the genitals of a drawing of a nude female child and “bottom” for the circle she placed on the drawing of the backside of a nude female child. Id. at 22. She testified that the Defendant touched her “privates or bottom” three times on the top of her clothes. Id. at 26-27. When asked what part of her body was touched, E.A. said she did not want to talk about it. Id. at 27. She described a time, when it was cold, that Defendant was driving her home and touched her privates. Id. at 28-29 (Count 1). E.A. drew on Exhibit 15 the place Defendant touched her, circling the genital area on a drawing of a nude female child. She testified that he touched her two other times in his truck, too. Id. at 29.

         N.B. testified at trial that she was then 12-years old. ECF No. 153 at 18 (sealed transcript). She testified that when she was eight-years old the Defendant touched her butt. Id. at 29-30 (Count 3). N.B. testified that she was sitting on Defendant's couch while wearing her swimsuit while her friend was using the Defendant's ...

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