United States v. Lynn Michael LaVictor

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0024p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 15-1580

v. │

│

│

LYNN MICHAEL LAVICTOR, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 2:14-cr-00030—R. Allan Edgar, District Judge.

Argued: November 29, 2017

Decided and Filed: February 3, 2017

Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew Marino, VANDERBILT LAW SCHOOL APPELLATE LITIGATION

CLINIC, Nashville, Tennessee, for Appellant. Jeff Davis, UNITED STATES ATTORNEY’S

OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: C. Mark Pickrell,

VANDERBILT LAW SCHOOL APPELLATE LITIGATION CLINIC, Nashville, Tennessee,

Christopher F. Cowan, THE LAW OFFICE OF C. F. COWAN, P.L.L.C., Columbus, Ohio, for

Appellant. Jeff Davis, Hannah Bobee, UNITED STATES ATTORNEY’S OFFICE, Grand

Rapids, Michigan, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant Lynn Michael LaVictor appeals denial of his motions

for a judgment of acquittal and a new trial under Federal Rule of Criminal Procedure 29 and

No. 15-1580 United States v. LaVictor Page 2

Rule 33, respectively.1 He also appeals a number of evidentiary rulings made by the district

court during his trial for the sexual assault of his girlfriend, hereinafter referred to as “C.B.” For

the reasons set forth below, we AFFIRM the district court’s judgment.

BACKGROUND

I. Factual background

On June 27, 2014, after a night of heavy drinking, LaVictor and C.B. returned to

LaVictor’s mother’s house on the Sault Ste. Marie Tribe of Chippewa Indians Reservation.

Around three in the morning, LaVictor contacted emergency services to notify them that C.B.,

his girlfriend, was bleeding from her vagina. Following a brief conversation, the dispatcher told

LaVictor to monitor C.B. and call back if her condition failed to improve. Approximately thirty

minutes later, LaVictor called again to request assistance.

Tribal police arrived on scene with emergency personnel to examine C.B. LaVictor

informed the officer on the scene that he and C.B. had engaged in consensual sex on the couch.

Blood stains were identified on the living room carpet. At the time, C.B. told the first responders

that while having sex, LaVictor became angry and then stuck an unknown object inside of her.

C.B. was taken to the emergency room while LaVictor remained in his mother’s house.

Upon her arrival to War Memorial Hospital at 4:30 in the morning, C.B. was admitted

directly to the emergency room because of internal vaginal bleeding and swelling. Dr. Nelu

Cristof, a gynecologist, performed surgery on C.B. to repair a two-centimeter perineal laceration,

as well as lacerations extending up the vaginal mucosa and underlying fascia. Testifying at trial,

Dr. Cristof expressed doubt that an erect penis caused C.B.’s injuries. Medical staff continued to

question C.B. about the extent of her injuries and the events of the previous night. Nurse

Christina Simpson testified that C.B. stated that LaVictor had put something inside of her.

1

LaVictor was found guilty and sentenced to 355 months in prison for the following criminal acts:

(1) Attempted Sexual Abuse, 18 U.S.C. § 2242(2)(B); (2) Aggravated Sexual Abuse through vaginal penetration,

18 U.S.C. § 2241(a)(1); (3) Aggravated Sexual Abuse through anal penetration, 18 U.S.C. § 2241(a)(1); (4) Assault

Resulting in Serious Bodily Injury, 18 U.S.C. § 113(a)(6); (5) Domestic Assault Habitual Offender, 18 U.S.C.

§ 117; (6) Witness Tampering, 18 U.S.C. § 1512(b)(1).

No. 15-1580 United States v. LaVictor Page 3

C.B. would later inform Nurse Simpson that LaVictor inserted a wine bottle into her vagina and

anus. Although C.B. declined a sexual assault examination, the police were contacted.

Tribal police officer Daniel Menard arrived at the hospital to interview C.B. He observed

her lying in bed, crying, and complaining of pain. C.B. began to cry vociferously as soon as

Officer Menard inquired about LaVictor and the incident in question. Recounting the events of

the previous night, C.B. told the officer that she and LaVictor went to several bars and the next

thing she could remember was waking up naked on LaVictor’s floor. She mentioned to Officer

Menard that something did not feel right, but refused to divulge any further information.

Instead, C.B. asked Officer Menard to leave. He complied and went directly to LaVictor’s home

to interview him. LaVictor reiterated that the sex from the previous night was consensual.

He explained that they regularly enjoy “crazy sex” which frequently “turns rough.” At the time,

LaVictor denied using a foreign object inside of C.B., instead claiming that C.B. commonly bled

from her vagina during sexual intercourse. When Officer Menard returned to the hospital,

C.B. asked him to retrieve her personal items from LaVictor’s residence. In the course of doing

so, LaVictor asked Officer Menard whether he could see C.B. Upon being informed of

LaVictor’s desire to visit, C.B. started visually trembling and explicitly requested that he be

denied entry.

Dr. Madeleine Guevara, an obstetrician-gynecologist, was assigned to provide post-

operative care to C.B. Initially, C.B. was reticent and scared. Eventually, she confided to Dr.

Guevara that she had nightmares. Expressing fear that LaVictor would assault her, she

acknowledged her involvement in a progressively worsening violent domestic relationship with

LaVictor and noted that this situation would be the last straw. C.B. denied that her injuries arose

because of “frisky sex;” rather, she stated that LaVictor caused her injuries by placing a wine

bottle inside of her. Nonetheless, C.B. was unwilling to press charges.

The day after speaking to Officer Menard, LaVictor called and requested an in-person

meeting, which transpired at the police station. Upon reiterating the consensual nature of his and

C.B.’s sexual encounter, LaVictor confessed to using a sex toy with C.B. He brought it along to

show Officer Menard. The toy was shaped in the form of a life-sized rubber arm and fist.

No. 15-1580 United States v. LaVictor Page 4

In light of mounting evidence of abuse, hospital personnel persuaded C.B. to talk with a

counselor from a local domestic abuse center on June 29, 2014. After her conversation with the

counselor, C.B. requested to speak to Officer Menard. Their conversation recounted the events

of the previous night and was memorialized in a five-page affidavit C.B. wrote out. On the basis

of her statement, tribal police executed a search warrant of LaVictor’s home, seizing the sex toy,

a blood soaked rug, and two empty wine bottles.

II. Procedural background

A. Grand Jury testimony

On July 22, 2014, C.B. testified before the grand jury. During the proceedings, C.B.

admitted writing a five-page statement that chronicled the sexual assault. Specifically, she

testified:

Q: And then you state that there is a moment after midnight where I don’t recall?

A: Yes

Q: And then it states that, I remember laying on the floor naked?

A: I wrote that, yes, that’s correct.

Q: Okay. I am – Yes, we are going over it. You immediately asked for your

clothes. Do you see that?

A: Um-h’m.

Q: Okay. You agree with that? Lynn was already furious. He said, no, you are

not getting your clothes. I know this is difficult, and if you have to take a break,

just let me know. We can stop. Okay? Do you see that?

A: Yes.

Q: Okay. Then he accuses you, when you ask for your clothes, of wanting to see

someone else; correct? Yes or no? Remember, you have to –

A: Yes. It is, yes. It is true, yes.

(R. 165-5, Tr., PageID # 2780). The testimony continues:

Q: Okay. And then he continues to get upset. Then you state that he forced your

legs open. Do you see that?

A: Yes.

Q: And then you state, I don’t feel like doing that.

No. 15-1580 United States v. LaVictor Page 5

A: Yeah.

Q: And you put in there, meaning sex?

A: Yes.

Q: Okay. Then he gets upset – more upset and he says you are mine. You are

doing whatever I want. Do you see that?

A: Yes.

Q. That’s what he told you?

A: Yep?

Q: He pushed his fingers into your vagina?

A: Yes, I remember it.

Q. Okay, and you yelled, stop it. It hurts. Why do you have to do that so hard?

Do you see that?

A: Yes.

Q: And his response was, never mind, shut up. And you again say, you are

hurting me?

A: Yeah, that’s - -

Q: And then you – he –You state that he opened me so roughly like it wasn’t real

skin. That’s how it felt to you?

A: Oh, my God. Yes.

Q: And then you tried to get up, and he is more angry and he says, lay down,

bitch, put his elbow along your eyebrow area, twisting you head sideways? Do

you see what you said there, I closed my eyes and I knew this was going to be a

battle . . .

A: Um-h’m

Q: -- again?

A: Yeah.

(Id. at 2781–83). C.B. further acknowledged that LaVictor slapped her, cursed at her, and forced

himself inside of her without consent. (Id. at 2783) She kept yelling at him to stop and that he

was hurting her, but he refused to do so until her vagina bled. (Id.) At the conclusion of her

testimony, the prosecutor offered C.B. several opportunities to supplement or amend her

testimony. C.B. simply stated that she loved LaVictor and did not want anything bad to happen

to him. (Id. at 2788) She informed the prosecutor that the affidavit was written in the hospital at

a time she was highly emotional and angry. But at no point did she recant her testimony.

No. 15-1580 United States v. LaVictor Page 6

B. Pre-trial proceedings

On July 22, 2014, a five-count indictment charged LaVictor with, inter alia:

(1) attempted sexual abuse pursuant to 18 U.S.C. § 2242(2)(B) (“Count One”); (2) aggravated

sexual abuse pursuant to 18 U.S.C. § 2241(a)(1) (“Count Two” and “Count Three”); (3) assault

resulting in serious bodily injury pursuant to 18 U.S.C. § 113(a)(6) (“Count Four”); and,

(4) domestic assault by a habitual offender pursuant to 18 U.S.C. § 117 (“Count Five”).

LaVictor was arrested on July 30, and arraigned a few days later by a magistrate judge who

ordered that he have no contact with C.B.

Despite this order, LaVictor sent a letter nominally addressed to his mother with an

attached affidavit that he requested C.B. copy in her own handwriting. It stated:

I [C.B.] do solemly [sic] swear that the statement I’m writing is the absolute truth.

At no time has Lynn LaVictor abused me violently in any way shape or form.

Furthermore Lynn LaVictor has never abused me sexually ever. All sexually [sic]

activity between Lynn LaVictor has at all times been consentually [sic]. All

statements incriminating Lynn LaVictor of sexuall [sic] misconduct were made

while I was under the influence and have no validity. I love Lynn LaVictor and

am absolutely in no way in fear of him in any way shape or form. These alledged

[sic] allegations are categorically untrue. In regards to case #2:14-CR-00030-

RHB counts 1 through 5. Date it & have notarized [sic.]

(Gov’t Ex. 14(A), App. 16–19). Consequently, the grand jury returned a superseding indictment

on September 9, 2014 against LaVictor adding additional charges of witnessing tampering

pursuant to 18 U.S.C. § 1512(b)(1) (“Count Six”) and contempt pursuant to 18 U.S.C. § 401(3)

(“Count Seven”).

On November 4, 2014 a detention hearing was held. During the hearing, C.B. testified

that she and LaVictor routinely engaged in rough sex that involved the use of foreign objects.

She claimed to have always consented, including the night of the alleged assault. She disavowed

her previous statement, explaining that she was angry at LaVictor for not coming to visit her at

the hospital. She insisted that she always wanted to have sex and that the only reason she filed a

protective order—a protective order that she would ultimately have retracted—was because she

was confused and persuaded to do so by hospital workers.

No. 15-1580 United States v. LaVictor Page 7

C. Trial

The case proceeded to trial. During the trial, the government called C.B. as a witness.

On the witness stand, she denied that LaVictor sexually assaulted her. Instead, she explained

that in the course of their relationship they used foul language and enjoyed rough sex. The

government moved to admit, over the objection of LaVictor, her grand jury testimony.

Additionally, the prosecution sought to impeach C.B. with her prior written statement.

Explaining the statement, C.B. attributed her previous remarks to intoxication and a personality

disorder. She also testified that following the hospitalization, the couple resumed their

relationship.

Additionally, the government called Dr. Amy Bonomi, an expert witness, to testify about

the dynamics of victim recantation. LaVictor objected to Dr. Bonomi’s proposed testimony.

The district court conducted a Daubert hearing and found the testimony admissible. On cross-

examination, LaVictor’s attorney challenged the applicability of the testimony to the facts of this

case. Dr. Bonomi acknowledged never having met with the victim or reviewed any evidence in

connection with the case. The government also introduced, over LaVictor’s objection, several

witnesses to testify about uncharged episodes of prior abuse. After less than three hours of

deliberation, the jury returned guilty verdicts on all six counts.2

D. Post-trial motions and sentence

Following the trial, LaVictor moved for judgment of acquittal under Federal Rule of

Criminal Procedure 29 and for a new trial under Rule 33.3 LaVictor argued in both motions that

the evidence was insufficient to sustain his convictions. He again raised previous evidentiary

challenges. The trial court denied both motions and rejected any evidentiary objections. The

district court sentenced LaVictor on May 11, 2015 to concurrent prison terms of 355 months on

Counts One to Three, 120 months on Count Four, 60 months on Count Five, 240 months on

Count Six, and 6 months on Count Seven. This timely appeal followed.

2

Prior to trial, LaVictor pleaded guilty to the contempt charge.

3

LaVictor had previously moved for judgment of acquittal at the close of the government’s case and

renewed the motion at the close of all the evidence, which the district court denied.

No. 15-1580 United States v. LaVictor Page 8

DISCUSSION

I. Admission of Expert Testimony

A. Standard of Review

This Court reviews a district court’s decision to admit proposed expert testimony for

abuse of discretion. United States v. Semrau, 693 F.3d 510, 520 (6th Cir. 2012). “A district

court abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” Best v. Lowe’s Home Cntrs., Inc., 563 F.3d 171, 176

(6th Cir. 2009) (quoting Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005)).

B. Analysis

LaVictor challenges the district court’s decision to admit Dr. Bonomi’s expert testimony

on domestic violence and victim recantation. Federal Rule of Evidence 702 outlines the standard

for admissibility regarding expert testimony, providing that:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the

case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that Rule

702 confers a “gatekeeping role” on trial judges to “ensur[e] that an expert’s testimony both rests

on a reliable foundation and is relevant to the task at hand.” 509 U.S. 579, 597 (1993). Daubert

attempts to strike a balance between a liberal admissibility standard for relevant evidence on the

one hand and the need to exclude misleading “junk science” on the other. Best, 563 F.3d at 176–

77. For expert testimony to be admissible, the court must find the expert to be: (1) qualified;

(2) her testimony to be relevant; and (3) her testimony to be reliable. Daubert, 509 U.S. at 589.

There is no “definitive checklist or test” for striking this balance, but the Supreme Court in

Daubert did identify four factors that normally bear on the inquiry:

No. 15-1580 United States v. LaVictor Page 9

whether a theory or technique can be or has been tested; (2) whether the theory or

technique has been subjected to peer review and publication; (3) the known or

potential rate of error in using a particular scientific technique and the standards

controlling the technique’s operation; and (4) whether the theory or technique has

been generally accepted in the particular scientific field.

Semrau, 693 F.3d at 520.

The district court conducted a Daubert hearing to evaluate the qualifications of the expert

and the probative value of her testimony. First, the district judge concluded she was qualified to

testify based on her academic background. Second, the trial court found her testimony to be

relevant to the case because of the alleged domestic violence. Finally, the district court

determined that her testimony was reliable because it was based on peer-reviewed research.

Recognizing that any issues with methodology or credibility could be best addressed during

cross-examination, the trial court allowed her testimony. LaVictor challenges each conclusion.

1. Relevance

LaVictor first challenges the relevance of Dr. Bonomi’s testimony, believing that the

government proffered insufficient facts that C.B. was a victim of domestic violence. LaVictor

also argues that such testimony infringes upon the jury’s traditional role of evaluating the

credibility of witnesses—here C.B. We disagree.

Foremost, we reject LaVictor’s contention that an insufficient basis was established for

Dr. Bonomi’s testimony. Relying upon United States v. LeBlanc, 45 F. App’x 393, 400–01 (6th

Cir. 2002), LaVictor claims that the government did not present enough evidence of domestic

abuse to lay the foundation for Dr. Bonomi’s testimony. However, he misreads LeBlanc.

In LeBlanc, this Court affirmed the decision of a district court, which excluded a defendant’s

expert from testifying about child suggestibility during questioning when the defendant did not

point “to a single instance in which [the child] was supposedly subjected to allegedly coercive or

suggestive questioning techniques” during the Daubert hearing. Id. at 400 (emphasis added).

Unlike in LeBlanc, ample evidence exists in the record to support a finding that C.B. was

involved in an abusive relationship. C.B. previously reported that LaVictor punched and choked

her in March 2014. Then, in the course of her hospitalization, C.B. confided to Dr. Guevara that

No. 15-1580 United States v. LaVictor Page 10

she was in a violent domestic relationship that was getting progressively worse. Moreover, her

grand jury testimony detailed prime examples of abuse and sexual assault. The district court is

free to conclude that the facts “fit” the case, so long as such conclusion is supported by a

preponderance of the evidence. And we see no fault with the district court’s conclusion in this

case.

Likewise, we reject LaVictor’s argument that Dr. Bonomi’s testimony was not helpful to

the jury. The relevancy bar is low, demanding only that the evidence “logically advances a

material aspect of the proposing party’s case.” Messick v. Novartis Pharm. Corp., 747 F.3d

1193, 1196–97 (9th Cir. 2014). This Court has held that “Rule 702 should be broadly interpreted

on the basis of whether the use of expert testimony will assist the trier of fact.” Mactec, Inc. v.

Bechtel Jacobs Co., LLC, 346 F. App’x 59, 77 (6th Cir. 2009) (quoting Morales v. Am. Honda

Motor Co., 151 F.3d 500, 516 (6th Cir. 1998)). The “rejection of expert testimony is the

exception, rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529–30 (6th

Cir. 2008). When there is a factual issue in dispute that expert testimony can clarify, there are

limited grounds for rejecting the testimony of the expert witness. See Lee v. Smith & Wesson

Corp., 760 F.3d 523, 527–28 (6th Cir. 2014) (reversing the decision of the lower court to not

admit an expert witness who could explain a factual point in dispute). There is a factual issue in

dispute—whether or not C.B. consented. Dr. Bonomi’s proposed testimony provides the jury

with an explanation for the contradictory evidence in the record. Because a strong factual

foundation exists upon which to conclude that C.B. and LaVictor were involved in an abusive

relationship, Dr. Bonomi’s testimony can clarify the issue in dispute. Therefore, we believe that

such testimony is highly probative and helpful to the jury.

Finally, LaVictor claims testimony that aids the jury in weighing a victim’s credibility is

improper. But courts draw a distinction between expert testimony offered on a witness’s

motivation to lie in a straightforward case where the benefit can be readily understood by a

layperson versus a case involving a more esoteric subject matter like domestic abuse. Compare

United States v. Henry, 71 F. App’x 493, 503–04 (6th Cir. 1993) (holding that a jury did not

need expert testimony on a witness’ motivation to lie in order to receive a lower sentence

because it was “within the realm of common sense”) with Thomas v. Lampert, 349 F. App’x 272,

No. 15-1580 United States v. LaVictor Page 11

278 (10th Cir. 2009) (“[f]or years, federal courts have allowed experts to offer their opinions

regarding battered woman’s syndrome to explain the contradictory testimony of victims of

abuse”) (emphasis added). An overwhelming number of federal courts accept that the dual

phenomenon of battered woman’s syndrome and victim recantation are beyond the knowledge of

an average juror, and therefore allow expert witnesses to offer testimony in such cases. See, e.g.,

United States v. Young, 316 F.3d 649, 657 (7th Cir. 2002) (finding that it was not an abuse of

discretion to admit testimony by an expert to explain a victim’s recantation); United States v.

Alzanki, 54 F.3d 994, 1009 (1st Cir. 1995) (noting that testimony concerning abuse in

relationships was highly material, somewhat technical, and beyond the realm of acquired

knowledge normally possessed by lay jurors); Arcoren v. United States, 929 F.2d 1235, 1241

(8th Cir. 1991) (a “jury naturally would be puzzled at the complete about-face made, and would

have great difficulty in determining which version of testimony it should believe . . . [and] if

there was some explanation for [the] changed statements, such explanation would aid the jury in

deciding which statements were credible.”). Although this Circuit’s pronouncements on the

issue have been more muted, we did recognize in an unpublished decision that an expert

witness’s testimony on why victims do not report incidents of domestic abuse was relevant. See

United States v. Smith, 142 F.3d 438 (6th Cir. 1998) (holding that the district court did not abuse

its discretion in allowing such testimony). We reaffirm that conclusion now.

2. Reliability

LaVictor also challenges the reliability of Dr. Bonomi’s testimony, arguing that her

testimony is insufficiently supported by statistical evidence. Specifically, he contends that her

reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes,

and lack of scientific testing, disqualify her opinion. The district court found Dr. Bonomi’s

methodology reliable and cited her voluminous publication history in support of this conclusion.

We identify no abuse of discretion in the district court’s holding.

Federal Rule of Evidence 702 does not limit the subject matter of expert testimony to

scientific or technical evidence. Rather, it is the district court’s duty to ensure that all expert

evidence is based “on a reliable foundation.” Daubert, 509 U.S. at 597. And while Daubert

identifies a number of potential considerations for determining reliability, this Circuit has

No. 15-1580 United States v. LaVictor Page 12

previously recognized that a district court operates with wide latitude in “deciding how to test an

expert’s reliability,” and, as such, must be afforded “considerable leeway in deciding . . . how to

go about determining whether particular expert testimony is reliable.” Clark v. W & M Kraft,

Inc., 476 F. App’x 612, 616 (6th Cir. 2012) (quoting Kumho Tire Co. v. Carmichael, 526 U.S.

137, 152 (1999)). Consequently, the district court is not bound by any explicit test when

determining reliability.

Courts have consistently allowed expert witnesses to testify concerning domestic

violence even in circumstances where the research is not supported by exhaustive statistical

evidence. See, e.g., United States v. Simmons, 470 F3d 1115, 1122 (5th Cir. 2006) (finding an

expert’s testimony reliable concerning the behavior of rape victims even though the research

lacked “empirical validity and ascertainability of error rate”); Beauchamp v. City of Noblesville,

320 F.3d 733, 745 (7th Cir. 2003) (expert’s citing anecdotal rape research to explain victim’s

“failure to immediately notify the police that she had been raped” and her “inability to recall the

details of the crime clearly” could “be consistent with that of a person who was raped”); Smith,

142 F.3d at 438 (admitting psychologist’s testimony that “she was familiar with reactions of

women who have been victims of rape or sexual assault and that women often do not report the

incidents immediately” to rebut defendant’s assertion that alleged victims “were unreliable

because they did not immediately report their rapes and assaults”); Alzanki, 54 F.3d at 1006

(upholding, as reliable under Daubert, testimony based on expert’s general research and personal

interaction with hundreds of abuse victims that alleged victim’s “behavioral response to the non-

sexual abuse administered by the [defendants] was consistent with the behavior of abuse victims

generally”).

Given the discretion district courts enjoy when making reliability determinations, we see

no grounds for reversal. Dr. Bonomi’s testimony was based on insight gleaned from her

personal experience interviewing victims of domestic abuse. Such research was published in

peer-reviewed journals. Peer review is an effective way for a district court to weed out junk

science. Daubert, 509 U.S. at 594 (finding that reliability is enhanced if the research is

“subject[ed] to the rigors of peer review and publication.”). Any remaining qualms LaVictor

harbored about Dr. Bonomi’s research could be addressed by “cross-examination and jury

No. 15-1580 United States v. LaVictor Page 13

instructions [that] can be used to question the qualifications of the proffered expert, undermine

the basis of the expert’s theories, explain the limits of social science’s validation studies and pick

apart research methods.” United States v. Smithers, 212 F.3d 306, 313 (6th Cir. 2000).

Consequently, we find Dr. Bonomi’s research to be sufficiently reliable, and thus admissible.

3. Prejudice

Lastly, LaVictor argues that the probative value of Dr. Bonomi’s testimony is

substantially outweighed by the danger of its unfair prejudice. Under Rule 403 of the Federal

Rules of Evidence, “[t]he court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” United States v. Collins, 799 F.3d 554, 588 (6th

Cir. 2015). This Court has consistently held that “[a] district court has very broad discretion in

making this determination.” Semrau, 693 F.3d at 523 (quoting Smithers, 212 F.3d at 322).

“[A] consideration of Rule 403 is included in the Daubert analysis.” Id.

We see no error in the district court’s conclusion concerning the balancing of the

evidence. Although some of Dr. Bonomi’s testimony may have involved graphic language and

pertained to troubling subject matter, it was highly probative. Jurors were presented with

evidence of purported abuse. Yet, C.B. refused to acknowledge this at trial. Her contradictory

actions may have confused the jury. By explaining the process of victim recantation, Dr.

Bonomi’s testimony presented the jury with a way to reconcile these incongruities and weigh her

testimony in appropriate context. Any emerging prejudice was addressed during cross-

examination, as well as a favorable jury instruction given by the trial judge informing the jury of

its capacity to disregard Dr. Bonomi’s testimony. See Simmons, 470 F.3d at 1124 (finding that a

jury instruction minimizes the import of any prejudice arising from the testimony of an expert

witness). Accordingly, we reject LaVictor’s argument.

No. 15-1580 United States v. LaVictor Page 14

II. Testimony of Prior Victims

A. Prior Bad Acts

i. Standard of Review

This Court generally reviews evidentiary issues for abuse of discretion but there is an

“on-going dispute in this circuit concerning the proper standard of review of Rule 404(b)

evidence.” United States v. Carter, 779 F.3d 623, 625 (6th Cir. 2015). Sometimes, this Court

will: (1) review for clear error the district court’s determination that prior bad acts took place;

(2) apply de novo review to a district court’s determination that the evidence was offered for a

permissible purpose; (3) and review for abuse of discretion the determination that the probative

value of 404(b) evidence is not substantially outweighed by unfair prejudice. See, e.g., United

States v. Mack, 729 F.3d 594, 601 (6th Cir. 2013); United States v. Clay, 667 F.3d 689, 693 (6th

Cir. 2012); United States v. Geisen, 612 F.3d 471, 495 (6th Cir. 2010). Other times, this Court

has applied a single-tier abuse of discretion standard. See, e.g., United States v. Jenkins,

593 F.3d 480, 484 (6th Cir. 2010); United States v. Allen, 619 F.3d 518, 524 n.2 (6th Cir. 2010)

(noting that this Circuit has “repudiated the three-tiered standard of review for Rule 404(b)

determinations in light of Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)); United States v.

Haywood, 280 F.3d 715, 720 (6th Cir. 2002).4 We need not resolve this question at the moment

because even if we apply the more lenient standard of “three-tiered” review, there are no grounds

for reversal.

4

There is also a circuit split on this issue. Compare United States v. Green, 617 F.3d 233, 239 (3d Cir.

2010) (applying de novo review to a district court’s determination of proper purpose under Rule 404(b)), United

States v. Akin, 213 F. App’x. 606, 608 (9th Cir. 2006), and United States v. Plumman, 409 F.3d 919, 928 (8th Cir.

2005) (applying de novo review to the district court’s interpretation and application of Rule 404(b)) with United

States v. Hite, 364 F.3d 874, 881 n.10 (7th Cir. 2004) vacated other grounds, 543 U.S. 1103 (rejecting de novo

review for this same issue), and United States v. Gilbert, 229 F.3d 15, 20–21 (1st Cir. 2000) (holding that, unless the

district court “misapprehended the scope of [Rule 404(b) ]” inasmuch as “we review its application of Rule[ ] 404(b)

. . . to the proffered evidence only for an abuse of discretion”).

No. 15-1580 United States v. LaVictor Page 15

ii. Analysis

Federal Rule of Evidence 404(b) states, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed. R. Evid. 404(b) (emphasis added). Admission of evidence under Rule 404(b) is also subject

to the requirements of Rule 403 which provides that “relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid.

403.

Prior to the final pretrial conference, the government filed notice of its intent to offer

evidence under Federal Rules of Evidence 404(b) and 413 concerning previous incidents of

physical assault toward women. LaVictor filed two motions in limine to preclude the admission

of the evidence, consisting of witnesses’ testimony regarding the assaults. The district court

conducted a hearing and reserved judgment. Following the testimony of these witnesses, the

court found that the other acts occurred and that the evidence was admissible for a proper

purpose—to show intent and absence of mistake—and was not unfairly prejudicial. LaVictor

concedes that sufficient evidence exists in order to establish that the prior acts transpired.

He only challenges the validity of the purpose for which the evidence was introduced and the

issue of whether it was overly prejudicial. We address each argument below.

1. Proper Purpose

In order to admit prior bad acts evidence, a district court must conclude that the evidence

is offered for a legitimate purpose. “To determine whether the proffered evidence is admissible

for a proper purpose, the trial court must decide ‘whether that evidence is probative of a material

issue other than character.’” United States v. Bell, 516 F.3d 432, 441–42 (6th Cir. 2008)

(quoting United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004)). “Evidence of other acts is

probative of a material issue other than character if (1) the evidence is offered for an admissible

purpose, (2) the purpose for which the evidence is offered is material or ‘in issue,’ and (3) the

No. 15-1580 United States v. LaVictor Page 16

evidence is probative with regard to the purpose for which it is offered.” United States v.

Rayborn, 495 F.3d 328, 342 (6th Cir. 2007).

The district court heard testimony from three separate victims5 at trial: R.M., P.T., and

B.L. B.L. testified that on one occasion LaVictor, while intoxicated, punched her in the head

while she was sleeping. He also struck her with a baseball bat, for which he was arrested.

P.T. testified that after she broke up with LaVictor, he repeatedly threatened her. He slashed the

tires of her car, broke out the windows, and damaged the engine. R.M. testified that in May

2010, she obtained a personal protection order against LaVictor because he refused to leave her

house. Throughout the relationship, he physically assaulted her and made threats to kill her and

her family. The district court found that the evidence was offered for two proper purposes: (1) to

show LaVictor’s intent to commit the act; and (2) that the assault was not an accident or mistake.

Arguing that the jury impermissibly concluded from the evidence that he had a violent

propensity and acted in conformity therewith, LaVictor urges this Court to reverse. We decline

to do so.

Rule 404(b) is “a rule of inclusion rather than exclusion.” Carney, 387 F.3d at 450 n.11.

Contrary to LaVictor’s argument, absence of mistake and intent are permissible purposes listed

under Rule 404(b). This Court has held that in introducing evidence of mistake, the

government’s purpose “must be to prove a fact that the defendant has placed, or conceivably will

place, in issue, or a fact that the statutory elements obligate the government to prove.” Bell,

516 F.3d at 442 (quoting United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir. 1996)

(emphasis added). Here, while LaVictor ultimately did not assert a defense based on mistake, it

was certainly conceivable at the time that the government sought to introduce the evidence that

he would make an argument, however tenuous or unconvincing, that the assault was accidental

or caused by a mistaken understanding that C.B. had consented to “rough sex.” We therefore see

no fault in the district court admitting the evidence for this purpose.

Additionally, intent is a legitimate reason for the government to offer such evidence.

This Court has previously held that the admission of other acts evidence is permitted to show

5

The testimony of two victims became unnecessary at trial because the defense stipulated to LaVictor’s

prior domestic assault convictions, an element of the domestic assault habitual offender statute.

No. 15-1580 United States v. LaVictor Page 17

intent when the defendant is charged with a crime containing a specific intent element. See Clay,

667 F.3d at 695; United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994) (holding that

“where there is thrust upon the government . . . by virtue of the elements of the crime charged,

the affirmative duty to prove that the underlying prohibited act was done with a specific criminal

intent, other acts evidence may be introduced under Rule 404(b)”). The prosecutor may use

404(b) evidence to prove that the defendant acted with specific intent even if a defendant does

not raise a lack of intent defense. See United States v. Bilderbeck, 163 F.3d 971, 977 (6th Cir.

1999). The majority of charges brought against LaVictor included a specific intent element.

With that said, other acts evidence “can still be completely irrelevant to [the issue of intent], or

relevant only in an impermissible way.” Clay, 667 F.3d at 696. We must therefore still decide

whether the evidence actually is probative on the issue of intent. Relying on Clay, LaVictor

argues that the testimony of previous victims does not speak to whether C.B. consented in this

case. Recognizing this to be a close question, we nonetheless disagree with LaVictor.

Evidence of intent is probative when the evidence “relates to conduct that is

‘substantially similar and reasonably near in time’ to the specific intent offense at issue.” Carter,

779 F.3d at 625 (quoting Haywood, 280 F.3d at 721). Otherwise, as we held in Bell, Rule 404(b)

evidence is probative of intent “when the prior [acts] were part of the same scheme or involved a

similar modus operandi as the present offense.” 516 F.3d at 443. Resting our conclusion on

similar principles in Clay, we refused to admit prior bad acts evidence because we found that

evidence of a 2006 assault did not show intent to assault an unrelated individual in a

2007 carjacking. “The two offenses at issue—assault and carjacking—are too unrelated and too

far apart in time to be probative of whether Clay had the specific intent to do harm to [the

victim].” 667 F.3d at 696. Despite LaVictor’s reliance upon Clay, however, LaVictor’s previous

acts of violence against women are virtually identical to his conduct toward C.B. Similar to the

cases involving the previous women, LaVictor was involved in a lengthy romantic relationship

with C.B. that contained similar allegations of abuse triggered by very comparable

circumstances. To the extent that there are any differences in the facts, we have held that there is

no requirement that the prior act must be “identical in every detail to the charged offense.”

United States v. Alkufi, 636 F. App’x 323, 332 (6th Cir. 2016). Similarly, there is “no absolute

maximum number of years that may separate a prior act and the offense charged.” United States

No. 15-1580 United States v. LaVictor Page 18

v. Love, 254 F. App’x 511, 516–17 (6th Cir. 2007), aff’d, 550 F. App’x 286 (6th Cir. 2014).

It appears to this Court that prior acts of violence against several different women, all of whom

LaVictor had a romantic relationship with, are indicative of LaVictor’s specific intent to commit

sexual assault against C.B.6

2. Prejudice

The third step in the analysis requires us to evaluate whether the 404(b) evidence was

overly prejudicial. We review this issue under an abuse of discretion standard. Broad discretion

is given to district courts in considerations of relevance and prejudice, and those decisions will

not be lightly overruled. See United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006).

In reviewing the district court’s balancing of the evidence, this Court “look[s] at the evidence in

the light most favorable to its proponent, maximizing its probative value and minimizing its

prejudicial effect.” Id. Recognizing the potentially prejudicial nature of the evidence, we

nonetheless find that the district court did not abuse its discretion in admitting such evidence.

LaVictor argues that the testimony of the three victims was minimally relevant and

outweighed by its prejudicial value and was overly cumulative. We disagree. In the instant case,

the government had minimal evidence of LaVictor’s intent or absence of mistake outside of

C.B.’s statement. Given C.B.’s recantation, the other assaults evidence became especially

important to the government’s case in order to establish intent. Therefore, the evidence was

highly probative. Accordingly, we cannot find that it was an abuse of discretion for the district

court to conclude that such evidence’s probative value outweighed its prejudicial impact. Nor do

we find the admission of the evidence overly cumulative. The mere fact that other witnesses

may testify to a particular fact does not necessarily render the testimony on the point cumulative

or prejudicial. See Ayers v. City of Cleveland, 773 F.3d 161, 169 (6th Cir. 2014). We see

6

Other circuits appear somewhat divided on whether it is appropriate to admit evidence of past sexual

assault in order to show intent to commit sexual assault under 404(b). Compare United States v. Sumner, 119 F.3d

658, 661 (8th Cir. 1997) (holding that prior abuse of the two other children is not sufficiently similar to the

defendant’s alleged abuse of the victim to be relevant for showing opportunity, planning, or preparation) with United

States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (concluding that testimony of defendant’s prior sexual

conduct with minors was admissible under Rule 404(b) “to show [the defendant’s] motive, intent, knowledge, plan

and preparation, and lack of mistake when he touched [the victim]” and that such evidence was more probative that

prejudicial).

No. 15-1580 United States v. LaVictor Page 19

nothing unreasonable in the fact that the district court allowed three similarly-situated separate

females to testify about instances of physical abuse. Furthermore, a limiting instruction was

given informing the jury on the proper use of the evidence, which ameliorated the risk of unfair

prejudice. See, e.g., United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006). Accordingly, we

conclude that the district court did not abuse its discretion.

3. Harmless error

Even if we assume that the district court’s admission of the testimony was erroneous,

LaVictor, nonetheless, is not entitled to a new trial unless “it is more probable than not that the

error materially affected the verdict.” United States v. Mack, 729 F.3d 594, 603 (6th Cir. 2013).

Admission of other acts evidence constitutes harmless error “if the record evidence of guilt is

overwhelming, eliminating any fair assurance that the conviction was substantially swayed by

the error.” United States v. Hardy, 643 F.3d 143, 153 (6th Cir. 2011). In reaching this

determination, this Court must take into account what the error meant to the jury, “not singled

out and standing alone” but in relation to all that happened. United States v. Murphy, 241 F.3d

447, 453 (6th Cir. 2001).

Although there is an understanding that testimony concerning previous episodes of sexual

assault can be particularly prejudicial to the jury, we believe that here, even if there was such an

error, the error was harmless. “When the government presents other convincing evidence, [this

Court] may deem the admission of 404(b) evidence mere harmless error.” United States v.

Layne, 192 F.3d 556, 573 (6th Cir. 1999). In this particular case, we are not convinced that the

admission of the prior bad acts swayed the jury. Aside from the evidence already contained in

the record speaking to LaVictor’s guilt, we also note that testimony covering this very specific

subject—LaVictor’s prior conduct toward woman—was properly put before the jury. First,

LaVictor stipulated to prior convictions of physical assault so the jury was informed of his

violent tendencies. Second, under Federal Rule of Evidence 413, the government sought, and

successfully introduced very similar testimony concerning his violent tendencies toward sexual

partners. So while we recognize the potential prejudice of such prior act testimony, we cannot

say that the error undermined the integrity of LaVictor’s conviction.

No. 15-1580 United States v. LaVictor Page 20

B. Rule 413 Evidence

i. Standard of Review

This Court reviews the admission of evidence under Rule 413 for abuse of discretion.

United States v. Seymour, 468 F.3d 378, 386 (6th Cir. 2006). “Generally, an abuse of discretion

is evident when the reviewing court is firmly convinced that a mistake has been made. A district

court abuses its discretion when it relies on clearly erroneous findings of fact, or when it

improperly applies the law or uses an erroneous legal standard.” United States v. Allen, 619 F.3d

518, 523–24 (6th Cir. 2010).

ii. Analysis

Testimony from two of LaVictor’s previous girlfriends, T.F. and B.L., was admitted by

the trial court under Federal Rule of Evidence 413. T.F. testified that she dated LaVictor for

approximately one year, ending the relationship in 2004. After concluding the relationship,

T.F. described an incident when she returned home to find her window open. After turning on

the light to her apartment, LaVictor “came out of nowhere, and he got me on the—on the

bathroom floor, and he raped me.” (R. 153, Tr., PageID # 2024). The rape went unreported.

B.L. also dated LaVictor for several years and described a similar incident of rape where he

forced her to get on her knees, perform oral sex on him, and then proceeded to take her clothes

off and force objects into her vagina. LaVictor argues that the district court abused its discretion

by admitting the aforementioned Rule 413 testimony. According to him, the alleged sexual

assaults involving T.F. and B.L. were not sufficiently similar to the incident involving C.B, are

uncorroborated, and are too remote in time to have been sufficiently probative. Furthermore, he

contends, the evidence should be rejected on Rule 403 grounds as overly prejudicial.

We disagree, finding the evidence properly admitted.

Federal Rule of Evidence 413 provides that “[i]n a criminal case in which the defendant

is accused of an offense of sexual assault, evidence of the defendant’s commission of another

offense or offenses of sexual assault is admissible, and may be considered for its bearing on any

matter to which it is relevant.” Sexual assault is defined in Rule 413(d) as “contact, without

consent, between any part of the defendant’s body—or an object—and another person’s genitals

No. 15-1580 United States v. LaVictor Page 21

or anus.” Evidence otherwise admissible under Rule 413 is still subject to Rule 403 balancing.

Seymour, 468 F.3d at 386. On review, this Court must give “the evidence its maximum

reasonable probative force and its minimum reasonable prejudicial value.” Id..

Foremost, the testimony of the witnesses need not be explicitly corroborated. See United

States v. Dillon, 532 F.3d 379, 391 (5th Cir. 2008). In fact, such a requirement would run

counter to the flexible nature of Rule 104(b), which governs the admissibility of testimony that is

conditionally relevant. The rule only mandates that evidence be supported. See Fed. R. Evid.

104(b). In other words, a district court must determine “that a reasonable jury could find by a

preponderance of the evidence that these acts were sexual assaults committed by the defendant.”

Dillon, 532 F.3d at 391; see also United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998)

(holding that a district court must make a preliminary finding that the other acts occurred). The

district court held a hearing, listened to the testimony of the witnesses, observed them, and found

their narratives truthful. We see no abuse of discretion.

Similarly, we see no error in the district court’s weighing of the probative value of the

testimony. During the hearing, the district court explicitly considered the similarity of the prior

acts and stated that:

all of these involved girlfriends of the defendant . . . . [T]he defendant acted in a

rage in [B.L’s] situation. Obviously, I think he did also in connection with [T.F],

because he stuffed the toilet and caused overflow there, broke into her apartment.

And both victims were overcome by force, violence[.]”

(R. 154, Tr., PageID # 2220). Proceeding, the court noted the “time factor here is—is several

years, but other courts have held much older sexual assaults have been admitted under . . .

Rule 413.” (Id.). We agree with both of the district court’s conclusions. The facts of the

previous sexual assaults are quite similar to those in question here toward C.B.7 Nor is the age

of the events a reason to disqualify the evidence because other courts have admitted testimony of

considerably older sexual assaults. See, e.g., United States v. Gabe, 237 F.3d 945, 960 (8th Cir.

2001) (twenty year old allegations); United States v. Meacham, 115 F.3d 1148, 1496 (10th Cir.

7

LaVictor relies upon Johnson v. Elk Lake Sch. Dist., 283 F.3d 138 (3d Cir. 2002) to show that there is a

lack of specificity and similarity of past acts, but Johnson was a civil case under Rule 415 and the Third Circuit

affirmed the trial court’s decision to exclude the evidence under an abuse of discretion standard. Accordingly, the

case is inapposite.

No. 15-1580 United States v. LaVictor Page 22

1997) (child molestation was admissible under Rule 414 that occurred twenty-five to thirty years

prior.

LaVictor’s final argument rests upon exclusion under Rule 403. Evidence otherwise

admissible under Rule 413 is subject to Rule 403 balancing, allowing the exclusion of relevant

evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See,

e.g., United States v. Morris, 494 F. App’x 574, 584 (6th Cir. 2012); Seymour, 468 F.3d at 386.

We recognize that Rule 413 evidence can be inherently prejudicial. By describing violent and

sexual conduct, the evidence may have a strong propensity to evoke a visceral reaction from a

lay jury. While we are sympathetic to LaVictor’s argument, Congress’s decision to codify Rule

413 reflects its belief of the probative nature of such testimony. As this Court explained in

United States v. Stout, 509 F.3d 796, 801–02 (6th Cir. 2007), the codification of Rule 413, 414,

and 415 represent an understanding that sexual assault is different from regular prior bad acts.

This difference is either that “propensity evidence has special value in certain violent sexual

misconduct cases or that the difficulty of and need for convictions for these crimes warrants a

decrease in the usual protections against propensity and character evidence.” Id. In cases where

the defendant argues that a victim consented, such testimony is especially important. See

Morris, 494 F. App’x at 583–84 (describing Congress’s understanding that prior sexual assault

evidence can be one of the few probative pieces of evidence to overcome a defendant’s argument

that the victim consented); see also Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) (“one of

Congress’ expressed rationales for Rule 413[ ] [is] the need for corroborating evidence when the

alleged rapist claims consent, and there are no witnesses other than the defendant and the alleged

victim.”). In the matter before us, the primary question weighing upon the guilt or innocence of

LaVictor is that of consent. This scenario falls precisely into the category of cases that Congress

envisioned when it enacted Rule 413. Accordingly, we cannot say that the district court abused

its discretion.

No. 15-1580 United States v. LaVictor Page 23

III. Other Evidentiary Matters

A. Admission of Grand Jury Testimony

i. Standard of Review

Admission of grand jury testimony is reviewed for abuse of discretion. See United States

v. Distler, 671 F.2d 954, 958 (6th Cir. 1981); see also United States v. Young, 316 F.3d 649, 658

(7th Cir. 2002) (same). But if a defendant fails to properly object to the admission of a piece of

evidence, this Court applies plain error review. United States v. Marrero, 651 F.3d 453, 470–71

(6th Cir. 2011). Under plain error, a defendant must show: (1) error, (2) that “was obvious or

clear,” (3) that “affected defendant’s substantial rights,” and (4) that “affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Warman, 578 F.3d

320, 345 (6th Cir. 2009) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008).

ii. Analysis

During the course of the trial, the government called C.B. to the witness stand. After

C.B. testified that the sex was consensual and no physical assault occurred, the government

moved to admit C.B.’s grand jury testimony into evidence as a prior inconsistent statement.

LaVictor raises three separate arguments that all relate to the government’s decision to introduce

C.B.’s prior testimony. First, LaVictor argues that the district court abused its discretion by

allowing the grand jury testimony to be admitted as an inconsistent statement. Second, LaVictor

claims that the government violated his due process rights by calling C.B. to the stand for the

sole purpose of impeaching her. And finally, LaVictor contends that the district court should not

have admitted the grand jury testimony in the manner that it did so. We consider each argument

in turn.

1. Admission of Grand Jury testimony

Arguing first that the district court erred with respect to admission of the grand jury

testimony, LaVictor contends that such testimony was not actually inconsistent with C.B.’s trial

No. 15-1580 United States v. LaVictor Page 24

testimony.8 Prior statements “inconsistent with the declarant’s testimony and [] given under

penalty of perjury at a trial, hearing, or other proceeding or in a deposition” are not hearsay. Fed.

R. Evid. 801(d)(1). This rule plainly allows for the admission, as substantive evidence, of grand

jury testimony that is inconsistent with the witness’ current testimony. See United States v.

Mayberry, 540 F.3d 506, 516 (6th Cir. 2008); United States v. Hadley, 431 F.3d 484, 511–12

(6th Cir. 2005). C.B.’s grand jury testimony—made under oath—can be admitted if it is in fact

inconsistent with her trial testimony.

The trial court considered the grand jury testimony and found it to be inconsistent. We

perceive no abuse of discretion. A trial court is afforded wide latitude in determining whether an

inconsistency exists. See Distler, 671 F.2d at 958. This may result in a district court admitting

evidence from grand jury testimony that in some parts corroborates the in-court testimony. Id.

(noting that admission of grand jury evidence is appropriate even if it corroborates some in-court

testimony as long as the prior statements “are predominantly inconsistent with the in-court

statements, and the corroborate portions are needed to set the whole in context.”) Such

determinations are “properly left to the discretion of the trial court.” Id. We have further

recognized that inconsistency is defined broadly to include testimony that reflects “limited and

vague recall of events, equivocation, and claims of memory loss.” Mayberry, 540 F.3d at 516.

Similarly, our sister circuits have also countenanced a broad definition of inconsistency.

See, e.g., United States v. Cowan, 528 F. App’x 278, 281 (4th Cir. 2013). C.B.’s grand jury

testimony affirmed the veracity of her previous affidavit. Moreover, it recounted with stark detail

that a sexual assault transpired. She averred that she failed to consent on the night in question.

Although there appear to be moments of indecision or hesitancy in her testimony, the

overwhelming thrust of the grand jury record reflects a description of a violent episode of sexual

assault. This is obviously inconsistent with the testimony she offered on the witness stand—that

she engaged in consensual sex. Where, as here, the decision making of the trial court is

supported by the record, we observe no grounds for reversal.

8

We note that C.B.’s prior written statement given to Officer Menard in the hospital was plainly

inconsistent with her trial testimony. But, as both parties concede, the written statement is hearsay and cannot be

introduced for the truth of the matter asserted. It can, however, be used to impeach C.B. See Fed. R. Evid. 613(b).

No. 15-1580 United States v. LaVictor Page 25

2. Due Process Claim

LaVictor next argues he suffered a violation of his due process rights. Specifically,

LaVictor argues that the prosecutor violated his Fifth Amendment rights by calling C.B. as a

witness for the sole purpose of placing the inconsistent statement before the jury. In so doing,

LaVictor cites this Court’s decision in United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977) to

support the aforementioned proposition of law. He claims that this Court reversed a conviction

when it was based on “the entire substance of a witness’s disavowed, unsworn prior statements”

because it “went beyond the permissible limits of fairness.” Id. at 643–44. We reject this

argument.

Initially, we note that under Federal Rule of Evidence 607, any party, including the party

that called the witness, may attack a witness’ credibility. In Shoupe, we recognized a limited

exception to this general rule. The government called a co-defendant to testify concerning his

role in the criminal enterprise. During the testimony, the prosecutor asked the co-defendant

whether anyone accompanied him into the bank. When the witness failed to answer, the

prosecutor sought to impeach him through an inconsistent statement by producing a

memorandum prepared by a federal agent, never seen by the witness, which the government read

from to allegedly refresh the witness’s memory. At no point did the witness acknowledge

making the statements contained in the memorandum. No other evidence tied the defendant to

the crime. Consequently, this Court held that the district court should have been alerted to the

possibility that the memorandum “lacked sufficient indicia of reliability to justify its blanket

disclosure to the jury, even for a limited purpose.” Shoupe, 548 F.2d at 642. Our decision was

premised upon reliability concerns that simply do not exist here.

The circumstances of LaVictor’s case are patently different. C.B. testified under oath.

She acknowledged making the written statement and affirmed the veracity of its content.

Therefore, we have no question that the statement was made by her. Additionally, in her grand

jury testimony she testified to the accuracy of the statement and the information contained

therein. To the extent that there is any concern regarding due process—in the form of fear that

the jury may confuse the issues—we have stated that a limiting instruction is an effective way to

alleviate those concerns. See Rush v. Illinois Cent. R. Co., 399 F.3d 705, 721 (6th Cir. 2005).

No. 15-1580 United States v. LaVictor Page 26

Such a limiting instruction was given to the jury. Consequently, we see no reason to conclude

that the prosecutor violated LaVictor’s due process rights.

3. Admission of the entire transcript

The final argument LaVictor raises concerns the decision of the district court to allow the

entire grand jury transcript to be admitted directly into evidence without providing an

explanation or cautionary instruction. LaVictor did not object during trial and concedes that in

such a circumstance this Court reviews for plain error. Equally, the government concedes that

the preferred method for introducing testimony involves reading it out loud. A dispute exists as

to whether the error in question was plain and whether it impacted LaVictor’s substantive rights.

This Court has held that a district court abuses its discretion when it allows for grand jury

testimony to be presented as an exhibit to the jury. See, e.g., United States v. Smith, 419 F.3d

521, 527 (6th Cir. 2005). Taped or recorded testimony creates a potential for double exposure to

selected testimony that may improperly influence a jury. United States v. Walker, 1 F.3d 423,

430 (6th Cir. 1993); see also Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 730 n.2 (6th

Cir. 1994) (a “party’s right to admit prior statements in a document . . . does not necessarily

entitle [ ] that party to submit the documents as an exhibit to the jury. Permitting the document

to go to the jury room could unduly prejudice the cross examination.”). With that said, not all

decisions to admit transcript testimony amount to an abuse of discretion. See United States v.

West, 948 F.2d 1042, 1044 (6th Cir. 1991) (decision to admit tapes were within the sound

discretion of the court). As a general rule, a district court must offer some justification for its

decision when deciding to admit the transcript directly into evidence. Smith, 419 F.3d at 528

(a district court must provide some reason for “eschew[ing] the established practice of simply

reading the transcript of the testimony aloud to the jury.”). The trial judge failed to make any

findings or offer any explanation for its decision to present the full transcript to the jury.

We find that this constituted an error.

However, even assuming that the error was, in fact, plain, there is no indication that the

decision had a substantial impact upon LaVictor’s rights. LaVictor insists that remand is

necessary because C.B.’s grand jury testimony was taken out of context. And that but for the

No. 15-1580 United States v. LaVictor Page 27

transcript, the government was left with little evidence from which it could have convicted him.

The record, however, belies LaVictor’s claim. This Court has emphasized that any prejudice

from having grand jury testimony admitted can be ameliorated by watching the witness testify.

Smith, 419 F.3d at 529. The jury had the benefit of seeing C.B. testify at trial twice. LaVictor

had a full opportunity to cross-examine her and place her grand jury testimony in context.

And finally, there was substantial evidence introduced at trial from which a jury could have

convicted LaVictor separate from the transcript. Because he failed to preserve the objection,

LaVictor has the burden of showing that the district court’s decision affected the outcome of the

case. LaVictor has not made such a showing. Similarly, we reject his argument concerning a

lack of cautionary instruction. We agree, as LaVictor contends, that “when a trial court permits a

deliberating jury to review trial testimony, the trial court must give the jury a cautionary

instruction.” United States v. Rodgers, 109 F.3d 1138, 1144–45 (6th Cir. 1997). But again,

under plain error review, we fail to see, in light of the overwhelming evidence already before the

jury, what prejudice LaVictor suffered. Therefore, we reject his argument.

B. Jury Instructions

i. Standard of Review

This Court reviews a district court’s decision not to give proposed jury instructions for

abuse of discretion. United States v. Ursery, 109 F.3d 1129, 1136 (6th Cir. 1997). A refusal to

give requested instructions is reversible error only if (1) the instructions are correct statements of

the law; (2) the instructions are not substantially covered by other delivered charges; and (3) the

failure to give the instruction impairs the defendant’s theory of the case. United States v.

Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993).

ii. Analysis

LaVictor raises two separate arguments with respect to the jury instructions that were

provided at trial. The first argument pertains to the jury instruction given on consent. LaVictor

proposed jury instructions to the district court. The district court rejected the instructions.

LaVictor claims this constitutes an abuse of discretion. Additionally, LaVictor now argues, for

No. 15-1580 United States v. LaVictor Page 28

the first time on appeal, that the district court erred by providing inappropriate instructions for

the Rule 413 evidence. We review this argument for plain error.

1. Jury Instructions on consent

LaVictor argues that the district court erred by rejecting his instructions on consent.

At trial, the district court instructed the jury that consent was a factor for the jury to consider.

Claiming error, LaVictor contends that consent is more than just a factor to be considered by the

jury because if C.B. had consented, then LaVictor would have had a complete defense. This

Court is unpersuaded.

The district court does not have to accept the exact language of a defendant’s proffered

jury instructions. United States v. McGuire, 744 F.2d 1197, 1201 (6th Cir. 1984) (“the district

court has great latitude in phrasing [jury instructions].”). LaVictor cites two cases, neither of

which provides any support for his contention that the jury instructions were incorrect.

See United States v. Boyles, 57 F.3d 535 (7th Cir. 1995) (noting consent instructions are only

given in rare cases because the presence of force will generally obviate any defense of consent);

United States v. Anderson, 467 F. App’x 474, 479 (6th Cir. 2012) (overturning a district court’s

decision not to admit the defendant’s proffered Rule 412 evidence). Despite LaVictor’s

contention that this does in fact represent one of those rare cases where a victim consents to

sexual intercourse involving force, we find the district court’s instructions adequate to address

the matter. Consent, as the jury was instructed, was a factor in the case. Whether it was the sole

factor or one of several to be weighed by the jury is immaterial.

2. Instruction on Rule 413

Next, LaVictor argues that the district court erred in its Rule 413 instruction to the jury,

but concedes we review for plain error. In the context of challenges to jury instructions, “[p]lain

error requires a finding that, taken as a whole, the jury instructions were so clearly erroneous as

to likely produce a grave miscarriage of justice.” United States v. Newsom, 452 F.3d 593, 605

(6th Cir. 2006) (quoting United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994)).

No. 15-1580 United States v. LaVictor Page 29

The district court instructed the jury that evidence of uncharged sexual assaults could be

used as evidence that the “defendant committed the crimes charged.” (R. 155, Tr., PageID #

2471–72). LaVictor argues that the court was clearly “required to instruct the jury that

consideration of other sexual assaults was limited to any matter to which it is relevant” and not

as evidence of guilt. He claims that this error endowed such testimony with the “imprimatur of a

judicial finding” and impacted the substantial rights of the defendant. (Id.). We reject this

argument. Rule 413 is clear that other instances of sexual assault “may be considered for [their]

bearing on any matter to which it is relevant.” This includes the evidence’s bearing on the guilt

or innocence of the defendant. See Seymour, 468 F.3d at 384–85. Any purported inconsistency

between the trial court’s instructions and the precise language of Rule 413 has no weight in the

jury’s consideration of the matter. Certainly, the disparity does not rise to the level of a “grave

miscarriage of justice.”9

C. Cumulative Error

i. Standard of Review

In order to obtain a new trial based upon cumulative error, LaVictor “must show that the

combined effect of individually harmless errors was so prejudicial as to render his trial

fundamentally unfair.” United States v. Walker, 506 F. App’x 482, 488 (6th Cir. 2012) (quoting

United States v. Trujillo, 376 F.3d 595, 614 (6th Cir. 2004). A trial need not be “perfect” to

withstand a due process challenge. United States v. Hernandez, 227 F.3d 686, 697 (6th Cir.

2000).

ii. Analysis

No basis exists for granting LaVictor’s request for a new trial. A number of arguments

regarding errors that LaVictor points to are, as previously explained, lacking in merit. Only two

arguable errors exist on the record before us: (1) the admission of 404(b) evidence concerning

prior acts of physical assault against women; and (2) the admission of grand jury testimony in

9

The case that LaVictor cites is inapposite. In United States v. Di Stefano, the trial court instructed the jury

that false exculpatory statements were admissible as evidence of guilt. 555 F.2d 1094, 1104 (2d Cir. 1977). The

Second Circuit found that such instruction was actually an incorrect statement of the law. In contrast, the district

court’s instructions accurately stated the law.

No. 15-1580 United States v. LaVictor Page 30

transcript form without an appropriate jury instruction. The latter of these was not even raised

during trial. With respect to the first claim of error, as we have previously stated, testimony that

is independently corroborated by admissible evidence, even when combined, does not prejudice

a defendant. See Warman, 578 F.3d at 349. Ample evidence existed in the record showing

LaVictor’s tendency to engage in physical abuse of women. Similarly, any prejudice that

resulted from admission of the transcript was minimal at best. Even accounting for the combined

impact of these two errors, we cannot say that LaVictor’s trial was fundamentally unfair.

IV. Sufficiency of the Evidence

A. Standard of Review

This Court reviews de novo the denial of a motion for acquittal based on insufficient

evidence. United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010). We must determine

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

United States v. Wettstain, 618 F.3d 557, 583 (6th Cir. 2010). “[A]n appellate court’s reversal

for insufficiency of the evidence is in effect a determination that the government’s case against

the defendant was so lacking that the trial court should have entered a judgment of acquittal,

rather than submitting the case to the jury.” Lockhart v. Nelson, 488 U.S. 33, 39 (1988).

A motion for a new trial under the Federal Rule of Criminal Procedure is reviewed for abuse of

discretion and granted only “in the extraordinary circumstances where the evidence

preponderates heavily against the verdict.” United States v. Hughes, 505 F.3d 578, 593 (6th Cir.

2007).

B. Analysis

LaVictor challenges the sufficiency of the evidence pursuant to Federal Rule of Criminal

Procedure 29. In the alternative, he requests a new trial under Federal Rule of Criminal

Procedure 33. A defendant bears a heavy burden when asserting insufficiency of the evidence

arguments. Wettstain, 618 F.3d at 583. “Circumstantial evidence alone is sufficient to sustain a

conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”

United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). Evidence must be interpreted “in

No. 15-1580 United States v. LaVictor Page 31

the light most favorable to the prosecution to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Campbell, 549 F.3d 364, 374 (6th Cir. 2008). All reasonable inferences must be made to support

the jury verdict. Wettstain, 618 F.3d at 583.

LaVictor raises a general argument that insufficient evidence was presented, in light of

C.B.’s recantation, to prove the sex was not consensual. LaVictor’s argument relies heavily

upon the presumption that this Court will accept his previous arguments for exclusion of

evidence. However, as we reiterated throughout this opinion, the evidence of guilt against

LaVictor was considerable even without her testimony. Mere “[c]ircumstantial evidence alone,

if substantial and competent, may support a verdict and need not remove every reasonable

hypothesis except that of guilt.” United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002).

Ample direct and circumstantial evidence of guilt existed. Moreover, C.B.’s recantation does not

necessarily benefit LaVictor. The jury heard expert testimony on victim recantation, and could

have relied upon this information in rejecting C.B.’s testimony. Viewing the totality of the

evidence in the light most favorable to the prosecution, as we are required to do, we must reject

LaVictor’s challenge to the sufficiency of the evidence. Aside from this general argument,

LaVictor also raises specific challenges to his convictions for Counts One, Three, Five, and Six.

We review each argument below.

i. Count One: Attempted Sexual Abuse

LaVictor first argues that there is insufficient evidence to convict him of Count One.

The relevant statute, § 2242(2)(B) prohibits “knowingly . . . engag[ing] in a sexual act with

another person if that other person is . . . physically incapable of declining participation in, or

communicating willingness to engage in, that sexual act.” LaVictor contends that the

government failed to provide any evidence that C.B. was incapable of declining participation in a

sexual act at the time of the alleged attempt. This argument is refuted by the record.

Because LaVictor is charged with the inchoate crime of attempt, the government need

only show that he took a “substantial step” toward committing the sexual act. Incapacity can

arise due to sleep, intoxication, or drug use and is punishable under the statute. See United States

No. 15-1580 United States v. LaVictor Page 32

v. Fasthorse, 639 F.3d 1182, 1184 (9th Cir. 2011) (a reasonable jury may conclude that a person

who is asleep when a sexual act begins is physically unable to decline participation); United

States v. Carter, 410 F.3d 1017, 1028 (8th Cir. 2005) (sufficient evidence existed even though

the victim was awake but under the effects of marijuana because this “may have hindered her

ability to object.”). C.B. testified that there was a moment after midnight that she could not

recall and when she woke up she was lying on the floor naked. She further testified that upon

asking for her clothes, LaVictor became violent. From this testimony, a reasonable jury could

conclude that LaVictor took a substantial step toward engaging in sex by undressing her at a time

when she was incapable of consenting.

ii. Count Three: Aggravated Sexual Abuse

In the indictment, the government charged LaVictor with “penetrat[ing] the anal opening

of C.B.” (R. 1, Indictment, PageID # 3). LaVictor now argues that the government failed to

establish an anal injury or penetration. However, the record belies this argument.

First, Christine Simpson, a nurse, testified that C.B. told her that LaVictor may have used

a wine bottle and “put it in both areas. [The witness] asked her, you know, what she meant by

both areas . . . did he put it in her, you know, bottom or anal region? And she said yes.”(R. 153,

Tr., PageID # 1856). Further testimony stated that C.B. expressed concern about her rectal area

because “she was worried about having a bowel movement. [C.B.] said there was also some

trauma to her rectum area, and she was scared it was going to hurt when she had a bowel

movement.” (Id. at 2008). And finally, C.B. admitted on direct examination at trial that she was

penetrated anally. Despite LaVictor’s assertion that the only evidence of anal penetration comes

from improper evidence, this is not the case. Nor is there a need, as LaVictor claims, for the

government to show an anal injury. Under the charged offense, penetration is sufficient. And

the direct testimony of witnesses coupled with C.B.’s personal statement is more than sufficient

for a jury to conclude that anal penetration took place.

iii. Count Five: Habitual Domestic Assault

LaVictor raises an additional argument that because that he is not a current or former

spouse, he cannot be convicted under the habitual domestic assault statute. Under the relevant

No. 15-1580 United States v. LaVictor Page 33

statute, 18 U.S.C. § 117, in order to convict, a jury must find that a defendant has committed a

domestic assault and has a final conviction on at least two separate prior occasions for offenses

that would constitute “any assault, sexual abuse, or serious violent felony against a spouse or

intimate partner . . . .” The statute defines domestic assault as “an assault committed by a current

or former spouse . . . by a person who is cohabitating with or has cohabitated with the victim . . .

or by a person similarly situated to a spouse.” 18 U.S.C § 117(b). LaVictor stipulated to two

prior convictions. However, believing the statute does not apply to him, LaVictor now points to

the fact that he is not cohabitating with defendant, nor is he a spouse, and requests that this Court

overturn his conviction.

As a threshold matter, this argument was not raised below. “Although specificity in a

Rule 29 motion is not required, where the defendant makes a Rule 29 motion on specific

grounds, all grounds not specified in the motion are waived.” United States v. Chance, 306 F.3d

356, 369 (6th Cir. 2002). In such a circumstance, the burden for prevailing on a sufficiency

challenge is even more demanding than usual. See United States v. Guadarrama, 591 F. App’x

347, 351–52 (6th Cir. 2014). Such claims are reviewed under the “manifest-miscarriage-of-

justice standard, and [this Court] will ‘only reverse a conviction if the record is devoid of

evidence pointing to guilt.’” Id. (quoting United States v. Carnes, 309 F.3d 950, 956 (6th Cir.

2002)). LaVictor does not meet this burden.

Although we have not defined what constitutes an “intimate partner,” a similar domestic

assault statute states that a “spouse or intimate partner” includes “a person who is or has been in

a social relationship of a romantic or intimate nature with the abuser, as determined by the length

of the relationship, the type of relationship, and the frequency of interaction between the persons

involved in the relationship.” 18 U.S.C. § 2266(7)(A)(i)(II); see United States v. St. John,

716 F.3d 491, 493 (8th Cir. 2013) (applying the definition to §117). Reading the plain language

of the statute, we see no reason to limit the definition, as LaVictor encourages, to cohabitating

partners. Rather, we look to the general nature of their relationship to determine, as the Eighth

Circuit has done, whether C.B. and LaVictor constitute intimate partners. LaVictor’s defense

counsel informed the jury that LaVictor and C.B. engaged in a lengthy, romantic relationship.

C.B. testified that she has known LaVictor for over twenty-three years and has been romantically

No. 15-1580 United States v. LaVictor Page 34

involved with him for five. She traveled back and forth from Canada to visit him every

weekend. Everyone was aware of their intimate relationship. They had plans to get married.

Accordingly, we find that given the frequency of their interactions, the length of the relationship,

and its intimate nature, sufficient evidence was presented to the jury in order to convict under

§ 117.

iv. Count Six: Attempted Witness Tampering

Last, LaVictor argues that there is insufficient evidence to convict him of attempted

witness tampering. As explained by the district court, to convict LaVictor, the government must

show he “knowingly [attempted] to corruptly persuade C.B. to provide a false written statement

with the intent to influence, delay, or prevent the testimony of C.B. in an official proceeding . . .

in violation of Title 18, United States Code, Section 1512 (b)(1).” (R. 155, Tr., PageID # 2465)

(the district judge instructing the jury). LaVictor believes that simply by sending C.B. a letter he

cannot be convicted under the statute. Rather, he contends that in order to “corruptly persuade,”

he must engage in some additional conduct either involving intimidation or a threat. In support

of this argument LaVictor points to a number of decisions that hold that merely requesting a

witness withhold information from investigators is insufficient to support a conviction. See

United States v. Weiss, 630 F.3d 1263, 1275 (10th Cir. 2010); see also United States v. Farrell,

126 F.3d 484, 489 (3d Cir. 1997) (“[M]ore culpability is required for a statutory violation than

that involved in the act of attempting to discourage disclosure in order to hinder an

investigation.”). We reject his argument because LaVictor did more than simply encourage C.B.

not to testify against him.

This Court has held that urging a witness “in an official proceeding . . . [a] term

encompass[ing] both federal criminal trials and grand jury testimony” to lie is sufficient evidence

of witness tampering. United States v. Burns, 298 F.3d 523, 540 (6th Cir. 2002); see also United

States v. Montgomery, 358 F. App’x 622, 629 (6th Cir. 2009) (noting that evidence showed the

defendant sent letters to a witness urging him to lie about the basis of their relationship, and that

was sufficient evidence of a conviction). LaVictor’s conduct in this case was tantamount to an

encouragement to lie. He wrote out an affidavit and requested that C.B. copy it in her own

handwriting and present it to the court. Because he was charged with the inchoate crime of

No. 15-1580 United States v. LaVictor Page 35

attempt, it is immaterial whether or not he successfully persuaded C.B. to do so. Rather, by his

efforts to get C.B. to refute her grand jury testimony, he took a “substantial step” toward witness

tampering. Accordingly, we find his conviction supported by sufficient evidence.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.