United States v. Martin Nez

FILED

NOT FOR PUBLICATION

AUG 09 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10104

Plaintiff - Appellee, D.C. No. 3:12-cr-08109-GMS-

v.

MEMORANDUM*

MARTIN NEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Argued and Submitted June 17, 2016 San Francisco, California

Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

Martin Nez appeals from his jury conviction and sentence for aggravated

sexual abuse under 18 U.S.C. §§ 1153 and 2241(a) and abusive sexual contact

under 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3). We affirm Nez’s conviction,

but remand to the district court for the limited purpose of correcting several errors

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. related to Nez’s conditions of supervised release. Because the parties are familiar

with the facts of this case, we do not repeat them here.

1. The government concedes that the…

MEMORANDUM *

Martin Nez appeals from his jury conviction and sentence for aggravated sexual abuse under 18 U.S.C. §§ 1153 and 2241(a) and abusive sexual contact under 18 U.S.C. §§ 1153 , 2244(a)(1), and 2246(3). We affirm Nez’s conviction, but remand to the district court for the limited purpose of correcting several errors related to Nez’s conditions of supervised release. Because the parties are familiar with the facts of this case, we do not repeat them here.

1. The government concedes that the district court erred in preventing Nez from testifying about certain statements that he alleged D.B. made to him during their sexual encounter. The statements were either admissible under Federal Rule of Evi-derice 803(3) or not hearsay, and were not otherwise admitted into the record. This error was harmless under either the constitutional or non-constitutional standard, however, as the excluded statements had very limited probative value in light of Nez’s other testimony recounting that D.B. initiated much of their encounter and otherwise conveyed her willingness to engage in it.

2. The district court did not clearly err in finding that D.B.’s statements to Nurse Clinton were made…

dissenting:

There whs only one contested issue before the jury in this case: consent. 1 D.B. *379 testified that Nez- raped her, while Nez maintained that D.B., who was legally competent to give consent, voluntarily participated in their sexual encounter. The district court committed three discrete errors: (1) excluding D.B.’s statements to Nez on hearsay grounds; (2) admitting Nurse Clinton’s testimony when no hearsay exception applied; and (3) admitting Carli Moncher’s expert opinion testimony without conducting the gatekeeping analysis required by Daubert 2 . Because these errors cumulatively deprived Nez of his due process right to a fair trial, I respectfully dissent from the majority’s affir-mance of Nez’s convictions.

I agree with the majority’s conclusion that the district court erred by prohibiting Nez from testifying about the statements D.B. made to him. However, I disagree that the district court properly admitted Clinton’s repetition of D.B.’s accusations under Federal Rule of Evidence 803(4). “The basis for this [hearsay] exception is the presumption of reliability of statements which flow from ‘the patient’s strong motivation to be truthful’” to secure proper…